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of Justice, who was separated from the service of such Bureau or Unit between June 10, 1933, and December 31, 1933, while in any such position in the Treasury Department, unless and until such person shall be appointed thereto as a result of an open, competitive examination to be hereafter held by the Civil Service Commission" (48 Stat. 1061).

In its request for opinion, the Commission states:

"It is a matter of considerable importance to the Commission before it undertakes the examining program called for by this provision of law to be able to determine definitely to what persons now employed in the Treasury Department and to what Treasury Department positions such examining program shall apply."

The Commission's questions relate to the proviso of the above-quoted provisions of the statute. The first and second question may be considered together. They are as follows:

"1. Does the above-quoted provision of the Deficiency Appropriation Act of June 19, 1934, apply to persons now in the Treasury Department in positions defined in the answers to Questions 3 and 4 below, who were automatically ‘separated from the service of the United States' on August 9, 1933, through the operation of the last paragraph of Section 19 of Executive Order No. 6166 of June 10, 1933, and who. under the authority granted to the head of the successor agency in the same paragraph, were immediately reappointed by him in the successor agency without break in service?"

"2. Does the above-quoted provision apply in the case of those who were similarly separated on August 9, 1933, who were not immediately reappointed in the successor agency, but who were reappointed in such agency within the four months period stated in the Executive Order of June 10, 1933, after a break in service?"

Relative to the first and second questions, it is clear that the language of the proviso includes all persons who were separated from the service of the Bureau of Prohibition and the Alcoholic Beverage Unit of the Department of Justice between June 10, 1933, and December 31, 1933. Section 3 of Executive Order No. 6166 of June 10, 1933, abolished the Bureau of Prohibition and transferred certain functions

thereof to the Treasury Department, and the remaining functions to other units in the Department of Justice. The employees of the Bureau of Prohibition were automatically "separated from the service of the United States" by the last paragraph of section 19 of Executive Order No. 6166. It is immaterial that some of these employees were immediately reappointed in the Treasury Department without a break in service while others were reappointed within four months under the authority of section 19 and still others were subsequently reinstated under Civil Service Rule IX, for obviously all of such employees were separated from the service by the Executive Order. The Alcoholic Beverage Unit was created in the Department of Justice subsequent to the abolition of the Bureau of Prohibition to perform certain of the functions formerly performed by the Bureau. The separation from the service of employees of the Alcoholic Beverage Unit prior to December 31, 1933, was accomplished by direct action of the Department, and such separation, therefore, brings such employees clearly within the scope of the proviso.

Accordingly, the first and second questions are answered in the affirmative.

The Commission's third and fourth questions are as follows:

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"3. What types of positions are covered by the expression any such position in the Treasury Department', as used in the above-quoted provision? Does such expression include, in addition to the positions specifically named,—

"(a) Only those positions the duties of which are of the same nature as those specifically named, for example, positions involving investigational, legal, regulatory, and administrative duties; or

"(b) In addition to these, all types of positions of whatever nature, including, for example, clerks, stenographers, and typists?"

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"4. Does the expression any such position in the Treasury Department', as used in the above-quoted provision, include

"(a) Only those positions, of the types indicated in the answer to Question 3, the duties of which are a part of the work of enforcing the liquor laws which was transferred

from the Department of Justice to the Treasury Department; or

"(b) In addition to these, positions of the types indicated in the answer to Question 3, the duties of which are a part of the other functions of the Treasury Department, such as enforcement of the customs, narcotics, or income-tax laws?"

* *

The Emergency Appropriation Act. fiscal year 1935, makes separate appropriations for the Executive, Emergency Relief. Petroleum Administration, Department of Agriculture, Department of the Interior, and Treasury Department, and amends the Agricultural Adjustment Act. That part of the Act making appropriations for the Treasury Department is further subdivided into parts entitled "Office of the Secretary ", " Bureau of Internal Revenue ", "Secret Service Division ", and "Procurement Division, Public Works Branch." The proviso under consideration is a part of the subdivision entitled "Bureau of Internal Revenue." It states that "no part of the appropriation made herein or heretofore made for the fiscal year 1935 shall be used to pay the salary of any person Standing alone, the "appropriation made herein" would appear to refer to the appropriation of $10,000,000 made in the preceding part of the subdivision for "Collecting the internal revenue ", and the words "heretofore made" would appear to refer to the prior appropriation made for the same purpose for the fiscal year 1935. Under this interpretation the proviso would be limited in its application to the appropriation made for the Bureau of Internal Revenue. The proviso, however, also contains the words "while in any such position in the Treasury Department". If it had been intended to limit the scope of the subdivision to the Bureau of Internal Revenue, the Congress would log cally have used the words "Bureau of Internal Revenue ", instead of the words "Treasury Department". especially since the subdivision is entitled "Bureau of Internal Revenue". It is impossible, of course, to give effect to the literal meaning of the language "while in any such position in the Treasury Department" unless the words "no part of the appropriation made herein " and " heretofore made " refer not only to the appropriation made for the Bureau of Internal Revenue

but include also all other appropriations made for the Treasury Department. The above-mentioned words are broad enough to permit such interpretation. The use of the language "no part of the appropriation made herein or heretofore made for the fiscal year 1935" and "in the Treasury Department" creates an ambiguity, and hence resort may be had to the legislative history of the act to ascertain the intention of its framers. Upon reference thereto, it is found that in the Conference Report, House Report No. 2057, 73d Congress, 2d Session, the Managers on the part of the House reported to that body relative to the legislation under consideration as follows (p. 13):

"No. 292: Inserts the amendment proposed by the Senate providing that after October 1, 1934, no part of the appropriation made in this act or heretofore made for the fiscal year 1935 shall be used to pay the salary of any person formerly employed as investigator, special agent, senior warehouseman, deputy prohibition administrator, agent, assistant attorney, assistant prohibition administrator, senior investigator, deputy production administrator, storekeeper or gager, or any other position in the Prohibition Bureau or Alcoholic Beverage Unit, Department of Justice, who was separated from the service of such Bureau or Unit between June 10, 1933, and December 31, 1933, while in any such position in the Treasury Department, unless and until such person shall be appointed thereto as a result of an open, competitive examination to be hereafter held by the Civil Service Commission, modified so as to change the date of October 1, 1934, to December 1, 1934."

It will be observed that the Conference Report interprets the words of the subdivision "no part of the appropriation made herein or heretofore made for the fiscal year 1935" as meaning "no part of the appropriation made in this act or heretofore made for the fiscal year 1935 ". Since Senate amendment No. 292 was a part of the proposed Emergency Appropriation Act, it is clear that the words "this act " refer to that part of that act making appropriations for the Treasury Department, and the words "heretofore made" refer to prior appropriations made for the Treasury Department.

Furthermore, a consideration of the proviso as a whole leads inevitably to the conclusion that it is directed primarily to persons rather than positions.

Considering all of the circumstances, it is my opinion that the proviso in question is not limited in its application to positions in the Bureau of Internal Revenue but applies also to positions in the other bureaus and units of the Treasury Department.

It is to be noted, however, that the word "position" in the language "while in any such position in the Treasury Department" is modified by the word "such ", which clearly refers to those positions in the Bureau of Prohibition and the Alcoholic Beverage Unit mentioned in the preceding language. The use of the word "such ", in my judgment, indicates an intention on the part of the Congress to limit the effect of the proviso to those positions in the Treasury Department which are similar or correspond to positions in the former Bureau of Prohibition and the Alcoholic Beverage Unit and which are now occupied by former employees of the said Bureau and Unit who were separated therefrom between June 10, 1933, and December 31, 1933.

The positions covered by the proviso are not necessarily limited to those positions the incumbents of which are engaged in the performance of the functions transferred from the Department of Justice, but include all positions in the Treasury Department similar in type or kind to those formerly existing in the Bureau of Prohibition and the Alcoholic Beverage Unit. Hence, the proviso applies to any employee in the Treasury Department who was separated from service in the Bureau of Prohibition or the Alcoholic Beverage Unit between June 10, 1933, and December 31, 1933, and whose duties are similar in kind, but not necessarily similar as to subject matter, to those formerly performed by any employee in the said Bureau or Unit. For example, if there were legal positions in the Bureau of Prohibition or the Alcoholic Beverage Unit and a former employee of the said Bureau or Unit was reappointed to or reinstated in a legal position in any Bureau or Unit of the Treasury Department, such person would come within the scope of the proviso, regardless of the kind of position

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