or such other system of classification as may be determined on by the Bureau, then, when it becomes necessary to reduce the force in any of the executive departments, all honorably discharged soldiers and sailors whose records in said departments are rated 'good,' or its equivalent, shall be retained in the service, without reduction in rank or salary, in preference to other classified employees serving in the same office or department. That is the evident intent of the statute and the Executive Order issued in pursuance thereof." The effect and evident purpose of the order of June 4, 1925, was to prescribe 80 as the lowest percentage rating entitled to be considered as "good." Your Solicitor has concluded that this order "applies to the departmental service and is therefore restricted to the employees in Washington." Whether or not the inference contained in this statement, concerning the limited application of the term, "departmental service," is correct I find no occasion to consider. The Order of March 3, 1923, extended the military preference provision to the entire "classified service," which is defined by Civil Service Rule II as comprehending "all officers and employees in the executive civil service of the United States" save persons and positions excepted by law or valid regulation, and includes "the classified employees of the several executive departments outside of Washington" (26 Op. 209, 214; 27 id. 184, 192). The order of June 4, 1925, construed the word "good," employed in the earlier order, as requiring a minimum rating of 80. It did not provide that the construction should prevail only in the service at Washington, and the particular paragraph stating the construction cannot be read with such limited meaning. Neither the President nor Congress could have intended that "good" should indicate varying degrees of efficiency, dependent upon geographical considerations or branch of the service. In any event, the definition of the Executive order is reasonable and consonant with common understanding, and, as I am informed, has been generally observed throughout the classified service. I approve it and, therefore, conclude that an employee in the field service of the Department of Agriculture must receive a minimum percentage rating of 80 in order to warrant a rating of "good" for purposes of military preference. Answering your other question, I concur in the conclusion of your Solicitor that the employee is to be considered as in competition only with other employees at the Chicago Station, within the contemplation of the Executive order relating to military preference. This view, as I am also informed, has been generally accepted and applied, and a strong presumption of correctness attaches to the administrative construction thus evidenced. Furthermore, the contrary view would be highly impracticable of application, requiring the transferring of employees from one station to another, perhaps far distant, in order to accomplish a reduction in force in a single office. In fact, an absurdity would be produced if the reduction in force were required by lack of funds and, yet, could not be accomplished without additional expense incident to such shifting of employees. Respectfully, HOMER CUMMINGS. To the SECRETARY OF AGRICULTURE. AUTHORITY OF SECRETARY OF AGRICULTURE TO BORROW MONEY FROM THE RECONSTRUCTION FINANCE CORPORATION AND ADVANCE IT TO THE MANAGER OF THE 1933 COTTON PRODUCERS POOL The Secretary of Agriculture is authorized by section 4 (a) and 5 of the Agricultural Adjustment Act, as amended, to borrow the sum of $20,000,000 from the Reconstruction Finance Corporation, and by section 4 (e) of the Act to advance it to the Manager of the 1933 Cotton Producers Pool for the purpose of enabling him to make an additional distribution or loan of two cents a pound on the cotton in the Pool to the Pool members DEPARTMENT OF JUSTICE, SIR: I have your letter of September 13, 1934, in which you request my opinion upon certain questions hereinafter indicated. It appears from your submission that you propose to borrow approximately $20,000,000 from the Reconstruction Finance Corporation under the authority of section 5 of the Agricultural Adjustment Act (c. 25, 48 Stat. 31), as amended by the Emergency Appropriation Act, fiscal year 1935, approved June 19, 1934 (Pub. No. 412, 73d Cong., 48 Stat. 1021), and advance it to the Manager of the 1933 Cotton Producers Pool for the purpose of enabling him to make an additional distribution of 2¢ per pound on the cotton in the Pool to the Pool members. It further appears that under the authority of section 4 (a) of the Agricultural Adjustment Act, as amended, the Secretary of Agriculture has already borrowed approximately $100,000,000 to refinance the acquisition and carrying of the cotton in the Pool and, under the authority of subsection (e), to advance $40,000,000 of that sum to the Pool Manager to enable him to refinance an advance of 4¢ per pound previously made to the Pool members. By recent order, the Commodity Credit Corporation has increased the loans on both old and new cotton to 12¢ per pound. The proposed action would give Pool members the benefit of this increase. It is indicated that there is some doubt as to whether the Secretary of Agriculture has sufficient interest in the cotton to secure the loan from the Reconstruction Finance Corporation, and you therefore request my opinion upon the following questions: "(1) Has the Secretary the necessary authority to secure advances from Reconstruction Finance Corporation, under the provisions of Section 5 of Agricultural Adjustment Act, as amended? "(2) Assuming that the Secretary has such authority, can he, under the authority given, make the required advances to the Manager, to enable the Manager to make the proposed advance to the holders of Participation Trust Certificates?" Section 5 of the Agricultural Adjustment Act, as amended provides: "The Reconstruction Finance Corporation is hereby authorized and directed to advance money and to make loans to the Secretary of Agriculture for the purpose of providing funds with which to enable the Secretary of Agriculture to perform the duties and functions which he is directed or authorized to perform under the provisions of part 1 of this title, provided such advance of money or such loans shall not be for amounts in excess of the market value of the cotton, or the interest of the Secretary of Agriculture in the cotton, against which the advance or loan is to be made at the time such advance or loan may be applied for by the Secretary of Agriculture, plus costs, expenses, and commissions incurred incidental to handling, carrying, and marketing of such cot[48 Stat. 1059.] [Italics supplied.] ton. It is to be noted that under the provisions of this section loans or advances which the Secretary of Agriculture is authorized to obtain from the Reconstruction Finance Corporation must not exceed the market value of the cotton, or the interest of the Secretary of Agriculture in the cotton, against which the advance or loan is to be made at the time of application therefor. It is stated in your letter that the market value of cotton was approximately 133⁄4¢ per pound as of September 13, 1934, and that the present outstanding indebtedness against the cotton in the Pool is 10¢ per pound. The proposed 2¢ per pound loan would not, therefore, make the total loan in excess of the market value of the cotton, and in this respect the loan would be authorized by the statute. Under the Pool Agreement the Pool Manager is the designated agent of the Secretary of Agriculture for certain purposes and also the trustee for the Pool members of such right, title, or interest as they may have in the cotton. Legal title to the cotton is, under the agreement, transferred by the Secretary of Agriculture to the Pool Manager but the control of the cotton is retained by the Secretary of Agriculture. Under section 4(a) of the Agricultural Adjustment Act, as amended, the Secretary is authorized to borrow money on all cotton in his control. It follows, therefore, that if his interest in the cotton at the time the application for the loan is made exceeds the proposed loan of 2¢ per pound the loan is authorized. In view of these circumstances, it is my view that the Pool Manager holds the legal title to the cotton merely as the agent of the Secretary of Agriculture and that the interest of the Secretary is measured by the difference between the market value of the cotton and the total amount of the outstanding liens thereon. Hence, if the market value of the cotton is 1334¢ per pound, the Secretary's interest is 334¢ per pound, and the proposed loan of 2¢ per pound is therefore authorized. Your first question is answered accordingly. The authority for the Pool Manager to make the additional distribution of 2¢ per pound is contained in the proposed amendment to the original Pool Agreement, which Pool members must execute in order to get the advance. Subsection (e) of section 4 of the Agricultural Adjustment Act, as amended, provides: "The Secretary of Agriculture is authorized to use in his discretion any funds obtained by him pursuant to the provisions of subsection (a) or (b) of this section or of section 5 for making advances to any agency which may have been or may be established by the Secretary of Agriculture for the handling, carrying, insuring, or marketing of any cotton acquired by the Secretary of Agriculture, to enable any such agency to perform, exercise, and discharge any of the duties, privileges, and functions which such agency may be authorized to perform, exercise, or discharge" (48 Stat. 1059). In opinion of July 28, 1934, to the Secretary of Agriculture [38 Op. 18], the Acting Attorney General held: "The Cotton Pool is an agency established for the purpose of handling and carrying cotton, and since the Pool Manager is specifically authorized to make loans and to pledge the cotton, with the approval of the Secretary, it is my opinion that the Secretary is authorized to make the proposed advance to the Pool Manager and that he may re-pledge the cotton to secure the loan thus obtained." Since the distribution of the loan of 2¢ per pound to Pool members is authorized by the amendment to the Pool Agreement, and since the Secretary is specifically authorized under subsection (e) to advance funds obtained under authority of section 5 to the Pool Manager to enable him to perform, exercise, and discharge any of the duties, privileges, and functions which he may be authorized to perform, exercise, and discharge, your second question is answered in the affirmative. Respectfully, HOMER CUMMINGS. To the SECRETARY OF AGRICULTURE. |