situation described by your Solicitor, involving the drainage by neighboring owners of vast quantities of oil underlying certain areas acquired by the War Department in the course of its rivers and harbors improvement program. Your Solicitor states that the War Department is without authority to take effective action to protect the Government's interest and that "it has been suggested that under the provisions of the Mineral Leasing Act the Department of the Interior is not only authorized to take protective action in these circumstances by leasing the deposits, but is in fact, as the guardian of the Government's interest in these rich petroleum deposits, charged with the duty to do so."

Section 1 of the Mineral Leasing Act provides in pertinent part as follows:

"That deposits of coal, phosphate, sodium, oil, oil shale, or gas, and lands containing such deposits owned by the United States, including those in national forests, but excluding lands acquired under the act known as the Appalachian Forest Act, approved March 1, 1911 (Thirty-sixth Statutes, p. 961), and those in national parks, and in lands withdrawn or reserved for military or naval uses or purposes, except as hereinafter provided, shall be subject to disposition in the form and manner provided by this act

* * * "

Your Solicitor urges that this language is plain, that it applies to all lands owned by the United States without exception save as expressly stated therein, that it is neither necessary nor permissible to resort to evidence of intent, and that if there were occasion to resort to construction the maxim expressio unius est exclusio alterius would be applicable.

This argument for a literal interpretation of the statute, ignoring known evidence that might show a contrary intent, does not take into account the principle stated by Mr. Justice Holmes in Boston Sand Co. v. United States, 278 U. S. 41, 48 (and see United States v. American Trucking Associations, 310 U. S. 534, 542; United States v. Dickerson, 310 U. S. 554, 561), that the rule against resorting to evidence of legislative intent when the language is plain “is rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Expressio unius est exclusio alterius is another axiom of

experience, properly to be considered when applicable but not necessarily controlling. As pointed out in United States v. Dickerson, supra, "the meaning to be ascribed to an act of Congress can only be derived from a considered weighing of every relevant aid to construction."

*

I do not regard the language of the section as so plain that standing alone it could have but one meaning. That "lands owned by the United States" embraces all lands without exception is thrown in doubt in the first place by the phrase immediately following, "including those in national forests." Any attempted literal interpretation of the section produces distinctions without apparent reason. For example, if the national parks and lands withdrawn or reserved for military or naval uses are excluded (see 34 Op. A. G. 172), it is not apparent that there is any rational basis for the distinction that would be involved if the national cemeteries, the parks and parkways in the national capital, the grounds of public buildings, lands purchased (as distinguished from those "withdrawn or reserved") for mili-tary or naval uses are included. This mention of lands "withdrawn or reserved," with probable reference to lands of the public domain in connection with which the words are commonly used, suggests a possible limitation which is seemingly confirmed by the title, "An act to promote the mining of coal, phosphate, oil, oil shale, gas, and sodium on the public domain." [Italics supplied.]

This view concerning the limitation of the application of the statute was adopted by the Department of the Interior. I quote below from a decision of the First Assistant Secretary of the Interior on an appeal from a decision of the Commissioner of the General Land Office (appeal decided March 12, 1924; rehearing denied, May 21, 1924), 50 L. D. 308, 315:

"While there has been no distinction made between public lands withdrawn for reservoir purposes and private lands acquired by purchase or condemnation for the same purpose, as regards leases for grazing and agricultural purposes, the Department is of the opinion that a distinction must be made as to the issuance of prospecting permits and leases under the Leasing Act of February 25, 1920, supra.

"In the case of private lands acquired by purchase or

condemnation, said lands are from the outset definitely segregated from the public domain. The cost of their acquisition must be paid from the reclamation fund, and the lands, when no longer needed for the project, cannot be opened to entry under the public land laws but must be sold at public auction, after appraisal, and the moneys received therefor must be paid into the reclamation fund and credited to the project for which it was purchased. See act of February 2, 1911 (36 Stat., 895).

"As to such lands it is clear that the granting of a permit to prospect for oil or gas must be denied, as the permittee, if permit should be granted and oil or gas discovered, would be entitled to a lease with rights of renewal which would indefinitely withhold the land from use in the project, in most cases. Were the oil development not inconsistent with the purposes to which the land is dedicated under the project, nevertheless the proceeds from said land would, by virtue of the provisions of the Leasing Act be applied in a man-ner inconsistent with the declared policy of Congress with respect to such lands, namely, that all the proceeds from lands so purchased should be covered into the reclamation fund, as expressed in the acts of June 17, 1902, supra, of March 3, 1905 (33 Stat. 1032), and of February 2, 1911, supra.

* *

*

*

herein

"Section 37 of the Leasing Act provides in part: 'That the deposits of coal, phosphate, sodium, oil, oil shale, and gas, herein referred to, in lands valuable for such minerals, shall be subject to disposition only in the form and manner provided in this act.' "This provision is limited to 'deposits referred to,' and the Department is of the opinion that lands acquired by purchase or condemnation pursuant to section 7 of the Reclamation Act, supra, and oil and gas deposits therein, are not within the purview of the Leasing Act [Italics supplied.]

** * * "

Secretary of the Interior Fall, "explicitly reversing the attitude of his predecessors," as it is stated in the Attorney General's opinion of May 12, 1924. held the statute applicable to so-called Executive Order Indian Reservations and executed a number of leases affecting such reservations. The President referred the matter to the Attorney General

who declared the leases to have been executed without authority of law. I have examined this opinion and concur both in its reasoning and in the conclusion reached.

It may be possible to distinguish Executive Order Indian Reservations from lands purchased for river and harbor improvements and it may be that the Attorney General could have reached the conclusion upon some other and narrower ground, as has been suggested, but there was no requirement that he should do so. It would have been rather unusual, in fact, to ignore what probably seemed to be the most obvious thing about the statute (suggested by the language of the section under consideration, unqualifiedly stated in the title, indicated by its legislative history and by prior decisions under this statute and earlier ones), namely, that it had peculiar application to the public domain, and that upon this consideration alone could its language (particularly its inclusions and exclusions) be explained as in accord with what one might expect as rational.

During nearly 17 years the opinion of Attorney General Stone has been followed with the acquiescence of the Congress. Suits instituted to cancel the leases dealt with in the opinion were adjusted upon an equitable basis under authority conferred by the act of Congress of March 3, 1927, c. 299, 44 Stat. 1347, 1348. This statute also authorized the execution of oil and gas leases upon unallotted lands within Executive Order Indian Reservations and made provision for the deposit of the proceeds to the credit of the affected Indian tribes—a disposition not possible under the 1920 statute, as pointed out by Attorney General Stone, and, therefore, raising objections which the Secretary of the Interior had attempted to meet by ordering the royalties deposited in the Treasury to await disposition by the Congress. As indicated in the Interior Department decision of March 12, 1924, supra, very much the same objection respecting disposition of proceeds may be applicable in connection with other lands, wholly owned by the United States but not forming a part of the public domain.

It was the purpose of the act of March 3, 1927, to deal with the situation created by the leasing of the Executive Order Indian Reservations, by the opinion holding the leases invalid and by the resulting litigation (Sen. Rept. 1240, 69th

Cong., 2d sess.). The fact that the Congress in that act gave to the Secretary of the Interior a part of the authority which the Attorney General had held to be lacking is persuasive evidence that it intended to withhold the part not therein granted and to adopt the opinion of the Attorney General as stating the rule which should prevail except as modified by subsequent enactments; and this conclusion receives added support from the fact that the Congress has since amended or supplemented the Leasing Act on several occasions but without extending its scope beyond that which had been attributed to it. United States v. G. Falk & Brother, 204 U. S. 143, 150, 152; United States v. Jackson, 280 U. S. 183, 193, 196; United States v. Farrar, 281 U. S. 624, 634; Burnet v. Thompson Oil & Gas Co., 283 U. S. 301, 307.

For the reasons hereinbefore indicated it is my opinion that the Mineral Leasing Act of February 25, 1920, does not authorize leases with respect to lands acquired by the War Department in the course of its rivers and harbors improvement program. This conclusion, of course, is not as broad as the question submitted, but it seems preferable that I should confine my answer to the specific case in which the question has arisen.

Respectfully,

ROBERT H. JACKSON.

POLITICAL ACTIVITY BY GOVERNMENT EMPLOYEES Federal employees who violate the provisions of section 9 of the Hatch Act are required to be removed from office and there is no discretionary authority to invoke with respect to Civil Service employees the lesser penalties prescribed by the civil service rules. State and local employees who violate the provisions of section 12 of the Hatch Act are not required to be removed from office if the Civil Service Commission determines that the violation does not justify removal.

The Hatch Act permits public expression of opinion on political subjects and candidates provided it does not amount to taking an active part in political management or in political campaigns.

1 Acts of April 30, 1926, c. 197, 44 Stat. 373; February 7, 1927, c. 66, 44 Stat. 1057; February 25, 1928, c. 104, 45 Stat. 148; May 21, 1930, c. 307, 46 Stat. 373; July 3, 1930, c. 854, 46 Stat. 1007; March 4, 1931, c. 506, 46 Stat. 1523; August 21, 1935, c. 599, 49 Stat. 674, 678.