position in the classified service "until he passes an examination in conformity with these rules, unless especially exempted thereunder"; but section 3 provides that “appointments to the excepted positions named in schedule A of these rules may be made without examination", and paragraph 4 of subdivision I of schedule A names among the positions excepted by the schedule the positions of "attorneys, assistant attorneys, and special assistant attorneys, except those in the Veterans' Bureau." Section 201 (e) requires that the appointments of several classes of employees, including attorneys of the class referred to in the question presented, shall be made "subject to the provisions of the civil-service laws." However, rule II and schedule A of the Civil Service Rules, which, as above stated, are a part of the civil-service laws, authorize attorneys whose appointments are subject to the provisions of the civil-service laws to be appointed without competitive examination; and the rule and schedule, insofar as their terms make them so, are applicable equally with other provisions of the civil-service laws to all employees, including attorneys, whose appointments are required by section 201 (e) to be made "subject to the provisions of the civil-service laws." This view is supported by an administrative practice of long standing. Since the adoption of paragraph 4 of subdivision I of schedule A as a part of the Civil Service Rules, it has been the general administrative practice in the executive branch of the Government to appoint under schedule A, without competitive examination, all attorneys whose appointments were required, by the act authorizing the same, to be made subject to or in accordance with the provisions of the civil-service laws. My attention has been called to section 4 (f) of the Communications Act of 1934 (48 Stat. 1064, 1067) and to the administrative construction and practice adopted in connection therewith. That section, which authorizes the appointments of attorneys and other employees in the Federal Communications Commission, contains substantially the same language as section 201 (e) of the Merchant Ma rine Act, 1936. After the enactment of the Communications Act the Civil Service Commission ruled that under its provisions attorneys appointed in the Federal Communications Commission were required to pass competitive civilservice examination. This ruling was acquiesced in by the Federal Communications Commission, and the practice of requiring attorneys appointed in the Federal Communications Commission to pass competitive civil-service examination has since been followed. See note 2 to schedule A, subdivision I, Civil Service Act and Rules, Statutes, Executive Orders and Regulations, published September 15, 1934. An administrative practice of sufficiently long standing is always entitled to consideration. It must be noted, however, that sections 208 and 311 of the Budget and Accounting Act, 1921 (42 Stat. 20, 22, 25; U. S. C., title 31, secs. 17 and 52), which authorize the appointment of attorneys and other employees in the Bureau of the Budget and in the General Accounting Office, are also, in all material respects, similar to section 201 (e). The Budget and Accounting Act was approved June 10, 1921, and since its enactment the administrative practice in connection therewith has been to appoint attorneys in the Bureau of the Budget and in the General Accounting Office under schedule A, without competitive examination. This administrative practice under the Budget and Accounting Act, followed for many years and conforming as it does to the above-mentioned general administrative practice of long standing, should not be upset except for sound and convincing reasons; and it goes a long way in the direction of proving the presence of unassailable ground for the construction of section 201 (e) in conformity therewith. It is not, in my opinion, overcome by the practice in connection with section 4 (f) of the Communications Act of 1934, since that practice has been adopted only recently. It has been suggested that the language of section 201 (e) differentiates it from many other statutes requiring appointments of attorneys to be made subject to the provisions of the Civil Service Rules, so that, notwithstanding the above mentioned administrative practice under earlier statutes, attorneys appointed under section 201 (e) are required by it to pass competitive civil-service examinations. It is pointed out that the section first expressly fixes a definite number of attorneys who may be appointed without regard to the civil-service laws-and thus without competitive examination and then provides for the appointment of additional attorneys "subject to the provisions of the civilservice laws". The argument is made that this provision for two separate and distinct classes of attorneys is a clear indication of the intention of Congress that attorneys of the class authorized to be appointed "subject to the provisions of the civil-service laws" should pass competitive civilservice examination; and that, therefore, section 201 (e) impliedly repeals, pro tanto, the provisions of schedule A— since otherwise the provision in the statute for the two distinct classes of attorneys would be without meaning. Repeals by implication, however, are not favored by the courts; and such repeals will not be recognized unless the intent to repeal is clear, or the provisions of the two statutes are wholly incompatible. I find no clear implication that the Congress intended by section 201 (e)—which, as heretofore noted, comprehends appointment of employees other than attorneys-to repeal, or in any way to modify or change, the provisions of schedule A or of section 3 of rule II of the Civil Service Rules relating to attorneys. Neither do I consider the statute wholly incompatible with the rule and schedule. The requirement for competitive examination is by no means the only distinction between appointments made "subject to the civil-service laws" and those made "without regard to" such laws. Moreover, the administrative practice above referred to in connection with the provisions of the Budget and Accounting Act, 1921— which statutes also provide for separate classes of attorneys, and are in other respects similar to section 201 (e)-is in direct conflict with the view that the language of section 201 (e) differentiates it from the language of other statutes under which attorneys have been appointed under schedule A, and the view that the section amounts to a partial repeal or modification of the schedule. It is my opinion, therefore, that the provisions of section 3, rule II, and of paragraph 4, subdivision I, schedule A of the Civil Service Rules are applicable to attorneys in the Maritime Commission of the class referred to in the question presented, and that such attorneys may be appointed without competitive civil-service examination. I have carefully examined the legislative history of section 201 (e) and of related statutes and find nothing therein conflicting with this conclusion. Respectfully, JOSEPH B. KEENAN, LEASING OF LANDS IN GRAZING DISTRICTS ESTABLISHED UNDER TAYLOR GRAZING ACT The leasing of State-owned lands within grazing districts established pursuant to sec. 1 of the Taylor Grazing Act is not authorized by that act and is therefore prohibited by sec. 3736 R. S. The authorization under the Taylor Grazing Act to accept gifts of land and contributions of money does not supply authority to purchase or lease lands with such contributions free from the restrictions of sec. 3736 R. S. The SECRETARY OF THE INTERIOR. MAY 14, 1937. MY DEAR MR. SECRETARY: Reference is made to your letter concerning the authority of your Department to lease State-owned lands situated within the boundaries of grazing districts established pursuant to section 1 of the Taylor Grazing Act (48 Stat. 1269), as amended by the act of June 26, 1936, 49 Stat. 1976. From your letter and the opinion of your Solicitor, dated February 15, 1937, it appears that a considerable portion of the lands within the grazing districts is owned by various States, particularly by the State of Utah; and that these lands are so interspersed with the public lands of the United States that, in the opinion of the Director of Grazing, effective administration of the grazing districts is seriously ham pered. For this reason, you deem it desirable from an administrative viewpoint that the United States have the control and use of such State-owned lands, and state that: "The specific question presented is whether leases of such lands, rentals thereunder to be paid from the special fund of contributions for which provision is made in section 9 of the Taylor Grazing Act, are prohibited by Revised Statutes, section 3736 (U. S. C., title 41, sec. 14) * Section 3736 of the Revised Statutes provides that "No land shall be purchased on account of the United States, except under a law authorizing such purchase", and a lease of land is within the purview of this statute. 28 Op. A. G. 463; 35 id. 183. Section 2 of the Grazing Act provides, in pertinent part, that: "The Secretary of the Interior shall make provision for the protection, administration, regulation, and improvement of such grazing districts as may be created under the authority of the foregoing section, and he shall make such rules and regulations and establish such service, enter into such cooperative agreements, and do any and all things necessary to accomplish the purposes of this act and to insure the objects of such grazing districts, namely, to regulate their occupancy and use, to preserve the land and its resources from destruction or unnecessary injury, to provide for the orderly use, improvement, and development of the range; It is the opinion of your Solicitor that this language is insufficient, in view of the prohibition contained in section 3736, supra, to authorize the leasing of lands generally in administering the Grazing Act, and, consequently, that no general appropriation for carrying out its provisions would be available for payment of rentals under such leases. With this conclusion I am in agreement. Section 8 (a) of the Grazing Act, as amended, reads as follows: "That where such action will promote the purposes of the district or facilitate its administration, the Secretary is authorized, for the purpose of this Act only, to accept on 58039m-42-vol. 39-6 |