all such applicants in accordance with its understanding of the import of the decision of that date in Hurley v. Crawley. It was decided by the Court of Appeals for the District of Columbia in Hurley v. Crawley that the holder of a "discharged from draft" certificate was an "honorably discharged soldier" within the meaning of the term as used in Civil Service Rule VI, as amended, according preference to certain veterans. Whether he had served on active duty was a question not involved under the law then in effect. Assuming, arguendo, that he did serve on active duty, other cases presenting different factual situations are distinguishable under the present law. It is stated, for example, that the individual whose case is now under consideration by the Commission "was inducted into the military service at local board * at 11:00 a. m., November 11, 1918, and was discharged from the draft at the place of local board at 1:00 p. m., November 11, 1918, by reason of the cancellation of the draft call and received pay for one day's service."

I cannot conclude that a man who spent two hours at the place of a local board can be said by reason of that alone to have performed the active duties of a soldier. Presumably he was awaiting an order that would have directed the next step in his progress toward engagement in such active duties. But the order never came. Therefore, limiting my answer to the case under consideration, it is my opinion that the individual concerned did not serve on active duty within the contemplation of the Veterans' Preference Act of 1944.

II

The second question submitted by the Civil Service Commission reads as follows:

"Does section 18 of the Veterans' Preference Act of 1944 preserve for a peacetime veteran who is in the Government service on June 27, 1944, the effective date of the act, the status of a preference eligible as defined in section 2 of that Act? In other words is such a peacetime veteran entitled by virtue of section 18 to the benefits of the Veterans' Preference Act of 1944, notwithstanding the fact that peacetime veterans are not included in the term 'preference eligible' in section 2 of that act?"

The document accompanying your letter indicates that this question has arisen with particular reference to the application of section 14 of the Veterans' Preference Act of 1944 to employees of the Navy Department.

The views of the Navy Department are set forth in the following excerpts from a letter addressed by that Department to the Civil Service Commission:

"The Navy Department is of the opinion that peacetime veterans whose preference was established as of the date of that act [Veterans' Preference Act of 1944] are not included among the preference eligibles who are to receive the protection accorded by section 14.

* *

*

"Section 2 of the act enumerates the categories of persons who are to have preference ** in retention in civilian positions in all establishments ** This section in other words enumerates those categories of persons who are to receive the rights conferred by the subsequent sections of the act. * * *

"It is the Navy Department's opinion that section 18 does not grant to a peacetime veteran any rights other than those that he had at the date of the enactment of this act. Congress did not intend by section 18 to include within the definition of preference eligibles for the purposes of this act, those persons who had preference under some other act, regulation or order but who did not fall within one of the categories mentioned in section 2.

*

* *

"Section 14 accords a right which was not a right 'heretofore granted to, or possessed by' a peacetime veteran prior to the enactment of Public Law 359 [Veterans' Preference Act of 1944]. Since this act does not confer any additional rights on peacetime veterans and seeks to preserve only those rights which such preference eligibles had at the date of the enactment of the act, it would appear that no peacetime veteran can be accorded the right set forth in section 14.

* * *

"It is the opinion of the Navy Department that certain statements found in the Senate and House Report on H. R. 4115 and in the report of the Hearings before the Civil Service Committee of the House support the opinions heretofore expressed in this letter *

* *99

The report of the Senate Committee on Civil Service (S.

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

is to be granted.

"Section 2 defines the various groups to whom preference * * * The bill would include substantially 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."

* *

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