Rept. No. 907, 78th Cong., 2d sess., p. 2), mentioned in the foregoing letter, reads in pertinent part as follows:

"Section 2 defines the various groups to whom preference is to be granted. The bill would include substan

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tially the same groups as are accorded preference under existing law with one exception. Ex-servicemen whose only service was performed during peacetime would not in the future be entitled to preference. By virtue of the provisions of section 18, however, peacetime veterans who are already in Government employment, or whose names are carried on civil-service registers on the date of enactment of this bill, will not lose the preference accorded them under existing laws and regulations."

It is suggested by the Civil Service Commission that this paragraph, as part of the legislative history of the measure, may afford some support for the view that section 14 is applicable to veterans other than those within the classes specified in section 2. I do not feel, however, that any such inference is warranted. The Senate Committee specifically stated that "section 2 defines the various groups to whom preference is to be granted," meaning, of course, to be granted by the bill then under consideration. The Committee further stated that "by virtue of the provisions of section 18, however, peacetime veterans who are already in Government employment, or whose names are carried on civil service registers on the date of enactment of this bill, will not lose the preference accorded them under existing laws and regulations." Both the language of this report and the language of the saving clause in section 18 indicate to me that persons not coming within the groups specified in section 2 are to be accorded only previously existing rights.

Based upon the foregoing, it is my opinion that a person who does not come within the terms of section 2 of the Veterans' Preference Act of 1944 is not entitled to rights under section 14 of that act.

Respectfully yours,

TOM C. CLARK.

ACQUISITION OF LAND UNDER FLOOD CONTROL ACT OF 1944 Real property to be purchased under the Flood Control Act of 1944 may be acquired subject to reservations of rights-of-way, timber, minerals and easements.

The words "lands, easements and rights-of-way," used in legislation relating to flood control, have long been interpreted as authorizing the acquisition of lands subject to reservations of rights-of-way, timber, minerals and easements. To disturb now the contemporaneous, uniform and long-continued construction, under which rights have been determined and adjusted, would be wholly unwarranted.

The SECRETARY OF AGRICULTURE.

DECEMBER 4, 1945.

MY DEAR MR. SECRETARY: In your letter of September 19 you requested my opinion whether real property to be purchased under the Flood Control Act of 1944 (approved December 22, 1944, c. 665, 58 Stat. 887, 889, 905) “may be acquired subject to reservations of rights-of-way, timber, minerals and easements."

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Section 13 provides for certain "works of improvement for run-off and waterflow retardation, and soil-erosion prevention to be prosecuted by the Department of Agriculture." Section 3 incorporates by reference and makes applicable here section 3 of the act of June 22, 1936, c. 688, 49 Stat. 1570, 1571, as amended by section 2 of the act of June 28, 1938, c. 795, 52 Stat. 1215 (33 U. S. C. 701c, 701c-1). The sections of the prior statutes thus incorporated provide at some length for the acquisition of "lands, easements and rights-of-way" needed for flood control programs. The quoted words have been used in statutes relating to flood control programs for a number of years. See act of May 15, 1928, c. 569, sec. 4, 45 Stat. 536 (33 U. S. C. 702d); act of March 1, 1917, c. 144, 39 Stat. 948, 950; and others.

Any question that may have existed in the first place concerning the meaning of the words, "lands, easements and rights-of-way," has, I think, now been set at rest. The earlier statutes above mentioned related to acquisitions under programs administered by the War Department. The present statute puts some programs under the War Department and others under the Department of Agriculture. The War Department has heretofore interpreted all these statutes as

authorizing the acquisition of lands subject to reservations of rights-of-way, timber, minerals and easements, and this Department has adopted the same view when approving titles under section 355 of the Revised Statutes (40 U. S. C. 255). Furthermore, as pointed out, the Congress has continued to use the words without change in succeeding statutes. To disturb now the contemporaneous, uniform and long-continued construction, under which rights have been determined and adjusted, would be wholly unwarranted. 39 Op. A. G. 194, 196; id. 203, 206; and cases there cited.

For the foregoing reasons the question submitted by you is answered in the affirmative.

Sincerely yours,

TOM C. CLARK.

TRADING WITH THE ENEMY ACT, SALES TO FILIPINOS

Filipinos are not citizens of the United States or "American citizens," unless naturalized.

Under the Trading with the Enemy Act, as amended, the Alien Property Custodian in the exercise of authority delegated by the President, and on making the determination required by the statute, is authorized to sell property in the Philippine Islands to Filipinos. Where sales to a specified group of non-citizens are authorized in the public interest, the members of that group may purchase for and may resell to all other members of the same group.

THE ALIEN PROPERTY CUSTODIAN.

January 11, 1946

MY DEAR MR. MARKHAM: I refer to your letter of September 19 requesting my opinion regarding your authority to make sales of property in the Philippine Islands to Filipinos.

By section 5 (b) of the Trading with the Enemy Act, as amended by Title III of the First War Powers Act, 1941 (approved December 18, 1941, c. 593, 55 Stat. 839; 50 U. S. C. Appendix, 616), the power is conferred, among others, to sell property of any foreign country or national thereof which has vested in the agency designated by the President, "upon such terms and conditions as the President may prescribe ** * in the interest of and for the benefit of the United States * ** *" Section 5 (b), accordingly, contains only the limitation that sales of vested property must

be in the interest of and for the benefit of the United Statesa matter which I gather from your letter you have considered in connection with sales to Filipinos.

Sales are also dealt with in section 12 of the Trading with the Enemy Act (act of October 6, 1917, c. 106, 40 Stat. 423, as amended by the act of March 28, 1918, c. 28, 40 Stat. 460; 50 U. S. C. Appendix, 12), which provides in part as follows:

"Provided, That any property sold under this act, except when sold to the United States, shall be sold only to American citizens, at public sale to the highest bidder, after public advertisement of time and place of sale which shall be where the property or a major portion thereof is situated, unless the President stating the reasons therefor, in the public interest shall otherwise determine: Provided further, That when sold at public sale, the alien property custodian upon the order of the President stating the reasons therefor, shall have the right to reject all bids and resell such property at public sale or otherwise as the President may direct. Any person purchasing property from the alien property custodian for an undisclosed principal, or for re-sale to a person not a citizen of the United States, or for the benefit of a person not a citizen of the United States, shall be guilty of a misdemeanor, and, upon conviction, shall be subject to a fine of not more than $10,000, or imprisonment for not more than ten years, or both, and the property shall be forfeited to the United States." [Italics supplied.]

Filipinos are not citizens of the United States or "American citizens," unless naturalized. Gancy v. United States, 149 F. (2d) 788; 39 Op. A. G. 86; Informal advice, Attorney General Gregory to Alien Property Custodian, April 20, 1918. If, therefore, section 12 be applied (see Markham v. Cabell, 326 U. S. 404) the question is presented whether under the quoted proviso the power to determine "otherwise" in the public interest extends to the requirement that property "shall be sold only to American citizens."

The provision concerning sales was added to the statute by the amendment of March 28, 1918. The first proviso, as it now reads, was drafted and recommended by a conference committee. Statements made by members of the committee when explaining the proposal in the House and in the Senate indicate that it was intended that the President's power to

waive the requirements of section 12 would be used to guard against sales to or for the benefit of unfriendly aliens (56 Cong. Rec. 3944, 4002, 4082-3, 4085); and this accords with what one would normally expect. There is no suggestion in the legislative history that sales to friendly aliens are disapproved or that the power of the President to waive the requirements of the proviso does not extend to the requirement that sales be made only to American citizens. The Trading with the Enemy Act was a war measure. It would seem strange to find therein an absolute denial of the power to make sales to allied countries, or to citizens of allied countries. Such an inhibition upon sales to Filipinos would be even less understandable.

It is, therefore, my conclusion that the statute authorizes the President to dispense with any or all of the requirements specified in the first proviso. On this very point the Supreme Court has said in United States v. Chemical Foundation, 272 U. S. 1, 12:

"The language of the statute is too plain to be misunderstood. Except as affected by the proviso, the Custodian's dominion over the property, and power to dispose of it— acting under the President as provided-were as unlimited as are the powers of an absolute owner; and the power of the President to determine terms and conditions of sales or other disposition was not restricted. He was authorized, stating the reasons therefor in the public interest, to dispense with any or all requirements specified in the proviso and to substitute others for them. Cf. Levinson v. United States, 258 U. S. 198. When the amended section is read in comparison with the original enactment and regard is had to the chemical warfare and other conditions existing at the time of the amendment, March 28, 1918, the inevitable conclusion is, that it empowered the President to authorize, and the Custodian acting under him to consummate, the sales in question."

Since Chemical Foundation v. United States did not involve sales to aliens, the Court had no occasion to discuss the sentence following the second proviso to section 12. That sentence prescribes criminal penalties for purchases, inter alia, for resale to, or for the benefit of, non-citizens. In the case of a determination, under the first proviso, permitting sales to aliens, the criminal provision at first glance would