B-140939, OCT. 28, 1959

B-140939: Oct 28, 1959

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IN VIEW OF SUBSEQUENT STATUTORY ENACTMENTS AND OF THE FACT THAT THE PURPOSE FOR WHICH THE STATUTE WAS PASSED NO LONGER EXISTS. THE PROVISIONS OF 5 U.S.C. 39 ARE AS FOLLOWS: "IT SHALL BE UNLAWFUL TO DETAIL CIVIL OFFICERS. OR OTHER SUBORDINATE EMPLOYEES WHO ARE AUTHORIZED. EXCEPT THOSE OFFICERS AND EMPLOYEES WHOSE DETAILS ARE SPECIALLY PROVIDED BY LAW. WE HAVE CAREFULLY CONSIDERED THE POINTS RAISED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER ALL OF WHICH ARE TO THE EFFECT THAT THE ORIGINAL PURPOSE FOR ENACTMENT OF THE STATUTE. - FROM WHICH 5 U.S.C. 39 IS DERIVED. THAT FACT ALONE IS NOT A SUFFICIENT BASIS FOR US TO SAY THAT SUCH PROVISIONS HAVE BEEN REPEALED BY IMPLICATION OR FOR REGARDING THEM AS NO LONGER APPLICABLE TO DETAILS TO THE DISTRICT OF COLUMBIA.

B-140939, OCT. 28, 1959

TO THE SECRETARY OF AGRICULTURE:

ON OCTOBER 6, 1959, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION CONCERNING A QUESTION RAISED IN YOUR DEPARTMENT AS TO THE NECESSITY FOR COMPLIANCE WITH THE PROVISIONS OF 5 U.S.C. 39, IN VIEW OF SUBSEQUENT STATUTORY ENACTMENTS AND OF THE FACT THAT THE PURPOSE FOR WHICH THE STATUTE WAS PASSED NO LONGER EXISTS.

THE PROVISIONS OF 5 U.S.C. 39 ARE AS FOLLOWS:

"IT SHALL BE UNLAWFUL TO DETAIL CIVIL OFFICERS, CLERKS, OR OTHER SUBORDINATE EMPLOYEES WHO ARE AUTHORIZED, OR EMPLOYED UNDER OR PAID FROM APPROPRIATIONS MADE FOR THE MILITARY OR NAVAL ESTABLISHMENTS, OR ANY OTHER BRANCH OF THE PUBLIC SERVICE OUTSIDE OF THE DISTRICT OF COLUMBIA, EXCEPT THOSE OFFICERS AND EMPLOYEES WHOSE DETAILS ARE SPECIALLY PROVIDED BY LAW, FOR DUTY IN ANY BUREAU, OFFICE, OR OTHER DIVISION OF ANY EXECUTIVE DEPARTMENT IN THE DISTRICT OF COLUMBIA, EXCEPT TEMPORARY DETAILS FOR DUTY CONNECTED WITH THEIR RESPECTIVE OFFICES.'

WE HAVE CAREFULLY CONSIDERED THE POINTS RAISED IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER ALL OF WHICH ARE TO THE EFFECT THAT THE ORIGINAL PURPOSE FOR ENACTMENT OF THE STATUTE--- FROM WHICH 5 U.S.C. 39 IS DERIVED--- NO LONGER EXISTS. THAT FACT ALONE IS NOT A SUFFICIENT BASIS FOR US TO SAY THAT SUCH PROVISIONS HAVE BEEN REPEALED BY IMPLICATION OR FOR REGARDING THEM AS NO LONGER APPLICABLE TO DETAILS TO THE DISTRICT OF COLUMBIA.

IN OUR DECISION OF MAY 28, 1959, B-139527, CONCERNING REPEAL OF STATUTES BY IMPLICATION WE AID:

"IT IS WELL ESTABLISHED RULE OF STATUTORY CONSTRUCTION THAT REPEALS OR MODIFICATIONS OF STATUTES BY IMPLICATION ARE NOT FAVORED. HOWEVER, WHERE STATUTES IN QUESTION CONTAIN PROVISIONS WHICH ARE REPUGNANT AND ARE IN IRRECONCILABLE CONFLICT AND WHERE THE INTENT OF LEGISLATURE TO REPEAL OR MODIFIED BY IMPLICATION TO THE EXTENT OF THE REPUGNANCY. UNITED STATES V. BORDEN CO., 308 U.S. 188; HENRIETTA MINING AND MILLING CO. V. GARDNER, 173 U.S. 123; UNITED STATES V. TYNEN, 20 L.ED. 153.'

WE FIND NO SUBSEQUENT PROVISIONS OF LAW WHICH ARE REPUGNANT OR IN IRRECONCILABLE CONFLICT WITH THE PROVISIONS OF 5 U.S.C. 39. HENCE, WE ARE OF THE VIEW THAT SUCH PROVISIONS ARE STILL IN FULL FORCE AND EFFECT.

FOR YOUR INFORMATION, WE ARE IN THE PROCESS OF PREPARING A REPORT TO THE CHAIRMAN, POST OFFICE AND CIVIL SERVICE COMMITTEE, HOUSE OF REPRESENTATIVES, ON A BILL--- H.R. 8748--- FOR REVISION AND RECODIFICATION OF TITLE 5, UNITED STATES CODE. IN OUR REPORT WE WILL RECOMMEND TO THE COMMITTEE THE REPEAL OF 5 U.S.C. 39.