A-58496, NOVEMBER 12, 1934, 14 COMP. GEN. 383

A-58496, NOVEMBER 12, 1934, 14 COMP. GEN. 383

REAPPOINTMENTS IN THE TREASURY DEPARTMENT OF FORMER EMPLOYEES OF THE BUREAU OF PROHIBITION OR ALCOHOLIC BEVERAGE UNIT, DEPARTMENT OF JUSTICE THE APPROPRIATION PROVISO UNDER THE HEADING "BUREAU OF INTERNAL REVENUE" IN THE DEFICIENCY ACT OF JUNE 19, 1934, 48 STAT. 1061, PROHIBITING THE USE OF APPROPRIATIONS FOR THE FISCAL YEAR 1935 FOR THE PAYMENT OF SALARY ON AND AFTER DECEMBER 1, 1934, OF PERSONS FORMERLY EMPLOYED IN CERTAIN CLASSES OF POSITIONS IN THE BUREAU OF PROHIBITION OR ALCOHOLIC BEVERAGE UNIT, DEPARTMENT OF JUSTICE, WHILE IN ANY SUCH POSITION IN THE TREASURY DEPARTMENT, UNLESS AND UNTIL SUCH PERSONS SHALL BE APPOINTED AS THE RESULT OF AN OPEN COMPETITIVE CIVIL-SERVICE EXAMINATION HELD AFTER THE DATE OF THE PROVISO, IS APPLICABLE TO ALL EMPLOYEES, OTHERWISE WITHIN THE PROVISO, WHO WERE AUTOMATICALLY SEPARATED AUGUST 9, 1933, FROM THE SERVICE OF THE ABOLISHED AGENCY, BUREAU OF PROHIBITION, DEPARTMENT OF JUSTICE, BY OPERATION OF SECTION 19 OF EXECUTIVE ORDER NO. 6166 OF JUNE 10, 1933, INCLUDING BOTH THOSE WHO WERE SUBSEQUENTLY REAPPOINTED WITH OR WITHOUT BREAK IN SERVICE IN THE TREASURY DEPARTMENT, AS WELL AS THOSE WHO WERE SUBSEQUENTLY REAPPOINTED WITH OR WITHOUT BREAK IN SERVICE IN THE ALCOHOLIC BEVERAGE UNIT, DIVISION OF INVESTIGATION, DEPARTMENT OF JUSTICE, WHO WERE LATER TRANSFERRED TO THE TREASURY DEPARTMENT BY OPERATION OF EXECUTIVE ORDER 6639 DATED MARCH 10, 1934. UNDER THE WELL-KNOWN EJUSDEM GENERIS RULE THE PHRASE "ANY OTHER POSITION" AS USED IN SAID PROVISO MEANS ANY POSITION OF A CLASS OR KIND SIMILAR TO THOSE SPECIFICALLY NAMED IN THE PROVISO, AND DOES NOT INCLUDE POSITIONS IN THE CLERICAL AND MECHANICAL GROUPS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, NOVEMBER 12, 1934:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 29, 1934, AS FOLLOWS:

AS YOU KNOW, A PROVISO WAS INSERTED IN THE EMERGENCY APPROPRIATION ACT FOR THE FISCAL YEAR 1935, UNDER THE HEADING OF THE "BUREAU OF INTERNAL REVENUE," WHICH UNDERTOOK TO PROHIBIT THE PAYMENT OF SALARIES BY THE TREASURY DEPARTMENT AFTER DECEMBER 1ST, 1934, TO CERTAIN PERSONS WHO HAD BEEN PREVIOUSLY SEPARATED FROM THE ROLLS OF THE DEPARTMENT OF JUSTICE.

AT THE INSTANCE OF THE CIVIL SERVICE COMMISSION THE ATTORNEY GENERAL FURNISHED TO THE PRESIDENT ON SEPTEMBER 6TH, 1934, AN INTERPRETATION OF THE PROVISO REFERRED TO ABOVE. ON SEPTEMBER 18TH THE SECRETARY OF THE TREASURY REQUESTED FURTHER ADVICE FROM THE ATTORNEY GENERAL AS TO THE EFFECT OF HIS OPINION OF SEPTEMBER 6TH. THE SECRETARY HAS JUST RECEIVED A LETTER FROM THE ATTORNEY GENERAL DATED OCTOBER 25TH ADVISING HIM, AMONG OTHER THINGS, THAT "EMPLOYEES WHO WERE NOT ACTUALLY SEPARATED FROM SERVICE IN THE BUREAU OF PROHIBITION OR THE ALCOHOLIC BEVERAGE UNIT BETWEEN JUNE 10 AND DECEMBER 31, 1933, AND WHO WERE TRANSFERRED TO THE TREASURY DEPARTMENT BY EXECUTIVE ORDER NO. 6639 OF MARCH 10, 1934, ARE NOT AFFECTED BY THE PROVISO.'

IN VIEW OF THE FACT THAT THE PROVISO IN QUESTION IS A LIMITATION ON EXPENDITURE AND THEREFORE ONE REQUIRING INTERPRETATION BY YOU, IT IS REQUESTED THAT YOU ADVISE THIS DEPARTMENT WHETHER TREASURY FUNDS WILL BE AVAILABLE FOR THE PAYMENT OF SALARIES (1) TO PERSONS WHO WERE EMPLOYED IN THE BUREAU OF PROHIBITION OR ALCOHOLIC BEVERAGE UNIT OF THE DEPARTMENT OF JUSTICE ON JUNE 10, 1933, AND WHO REMAINED ON THE ROLLS OF THAT DEPARTMENT WITHOUT BREAK IN SERVICE UNTIL MAY 10, 1934, AND WERE THEN TRANSFERRED IN PURSUANCE OF THE TERMS OF THE EXECUTIVE ORDER OF MARCH 10, 1934, TO THE TREASURY DEPARTMENT, ASSUMING THAT SUCH EMPLOYEES HAVE NOT SINCE THE DATE OF THE ENACTMENT OF THE EMERGENCY APPROPRIATION ACT PASSED AN OPEN COMPETITIVE CIVIL-SERVICE EXAMINATION AND BEEN CERTIFIED FOR APPOINTMENT IN PURSUANCE THEREOF; AND (2) TO PERSONS EMPLOYED IN THE BUREAU OF PROHIBITION OR ALCOHOLIC BEVERAGE UNIT OF THE DEPARTMENT OF JUSTICE ON JUNE 10, 1933, WHOSE DUTIES WERE CLERICAL AND MECHANICAL IN CHARACTER AND NOT SIMILAR TO THE DUTIES OF THE VARIOUS POSITIONS MENTIONED IN THE PROVISO TO THE EMERGENCY APPROPRIATION ACT REFERRED TO ABOVE, REGARDLESS OF WHETHER THEY WERE SEPARATED FROM THE ROLLS OF THE BUREAU OF PROHIBITION OR ALCOHOLIC BEVERAGE UNIT OF THE DEPARTMENT OF JUSTICE BETWEEN THE DATES OF JUNE 10, 1933, AND DECEMBER 31, 1933.

THE APPROPRIATION ITEM, WITH THE PROVISO IN QUESTION, APPEARS IN THE ACT OF JUNE 19, 1934, 48 STAT. 1061, AS FOLLOWS:

BUREAU OF INTERNAL REVENUE

COLLECTING THE INTERNAL REVENUE: FOR AN ADDITIONAL AMOUNT FOR EXPENSES OF ASSESSING AND COLLECTING THE INTERNAL-REVENUE TAXES, INCLUDING THE SAME OBJECTS SPECIFIED UNDER THIS HEAD, AND UNDER THE HEAD "SALARIES AND EXPENSES, BUREAU OF INDUSTRIAL ALCOHOL," IN THE TREASURY DEPARTMENT APPROPRIATION ACT, 1935, AND INCLUDING SO MUCH AS MAY BE NECESSARY FOR THE COMPENSATION OF ONE ADDITIONAL DEPUTY COMMISSIONER, TO BE IMMEDIATELY AVAILABLE, $10,000,000; OF WHICH NOT TO EXCEED $800,000 MAY BE EXPENDED FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA, AND NOT TO EXCEED $71,250 FOR THE PURCHASE OF PASSENGER CARRYING AUTOMOBILES TO BE USED ON OFFICIAL BUSINESS: PROVIDED, THAT AFTER DECEMBER 1, 1934, NO PART OF THE APPROPRIATION MADE HEREIN OR HERETOFORE MADE FOR THE FISCAL YEAR 1935 SHALL BE USED TO PAY THE SALARY OF ANY PERSON FORMERLY EMPLOYED AS INVESTIGATOR, SPECIAL AGENT, SENIOR WAREHOUSEMAN, DEPUTY PROHIBITION ADMINISTRATOR, AGENT, ASSISTANT ATTORNEY, ASSISTANT PROHIBITION ADMINISTRATOR, SENIOR INVESTIGATOR, DEPUTY PRODUCTION ADMINISTRATOR, STOREKEEPER OR GAUGER, OR ANY OTHER POSITION IN THE PROHIBITION BUREAU OR ALCOHOLIC BEVERAGE UNIT, DEPARTMENT OF JUSTICE, WHO WAS SEPARATED FROM THE SERVICE OF SUCH BUREAU OR UNIT BETWEEN JUNE 10, 1933, AND DECEMBER 31, 1933, WHILE IN ANY SUCH POSITION IN THE TREASURY DEPARTMENT, UNLESS AND UNTIL SUCH PERSON SHALL BE APPOINTED THERETO AS A RESULT OF AN OPEN, COMPETITIVE EXAMINATION TO BE HEREAFTER HELD BY THE CIVIL SERVICE COMMISSION.

THE PROVISO IS A RESTRICTION OR LIMITATION ON THE USES OF APPROPRIATIONS FOR THE FISCAL YEAR 1935, RATHER THAN A GENERAL PROVISION OF LAW PRESCRIBING CONDITIONS PRECEDENT OR QUALIFICATIONS FOR APPOINTMENT OR REINSTATEMENT TO POSITIONS, AND, AS YOU INDICATE, THE DETERMINATION OF ITS SCOPE AND EFFECT IS A DUTY AND RESPONSIBILITY OF THIS OFFICE. CLEARLY THE INHIBITION OF THE PROVISO APPLIES ONLY TO THOSE APPROPRIATIONS FOR THE TREASURY DEPARTMENT WHICH OTHERWISE WOULD BE AVAILABLE FOR THE PAYMENT OF SALARIES FOR THE FISCAL YEAR 1935 OF PERSONS EMPLOYED "IN ANY SUCH POSITION"--- THAT IS, IN A POSITION UNDER THE TREASURY DEPARTMENT CORRESPONDING, AS TO DUTIES, TO ONE OR MORE OF THE CLASSES COVERED BY THE PROVISO, FORMERLY IN THE PROHIBITION BUREAU OR THE ALCOHOLIC BEVERAGE UNIT OF THE DEPARTMENT OF JUSTICE.

SECTIONS 3, 19 (FIRST AND LAST PARAGRAPHS), 21, AND 22 OF EXECUTIVE ORDER NO. 6166, DATED JUNE 10, 1933, ISSUED UNDER AUTHORITY OF SECTIONS 401-409 OF THE ACT OF JUNE 30, 1932, AS AMENDED BY SECTION 16 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1517, AND, THEREFORE, HAVING THE FORCE AND EFFECT OF LAW, PROVIDE AS FOLLOWS:

SECTION 3. INVESTIGATIONS.--- ALL FUNCTIONS NOW EXERCISED BY THE BUREAU OF PROHIBITION OF THE DEPARTMENT OF JUSTICE WITH RESPECT TO THE GRANTING OF PERMITS UNDER THE NATIONAL PROHIBITION LAWS ARE TRANSFERRED TO THE DIVISION OF INTERNAL REVENUE IN THE TREASURY DEPARTMENT.

ALL FUNCTIONS NOW EXERCISED BY THE BUREAU OF PROHIBITION WITH RESPECT TO INVESTIGATIONS AND ALL THE FUNCTIONS NOW PERFORMED BY THE BUREAU OF INVESTIGATION OF THE DEPARTMENT OF JUSTICE ARE TRANSFERRED TO AND CONSOLIDATED IN A DIVISION OF INVESTIGATION IN THE DEPARTMENT OF JUSTICE, AT THE HEAD OF WHICH SHALL BE A DIRECTOR OF INVESTIGATION.

ALL OTHER FUNCTIONS NOW PERFORMED BY THE BUREAU OF PROHIBITION ARE TRANSFERRED TO SUCH DIVISIONS IN THE DEPARTMENT OF JUSTICE AS IN THE JUDGMENT OF THE ATTORNEY GENERAL MAY BE DESIRABLE.

SECTION 19. GENERAL PROVISIONS.--- EACH AGENCY ALL THE FUNCTIONS OF WHICH ARE TRANSFERRED TO OR CONSOLIDATED WITH ANOTHER AGENCY IS ABOLISHED.

ALL PERSONNEL EMPLOYED IN CONNECTION WITH THE WORK OF AN ABOLISHED AGENCY OR FUNCTION DISPOSED OF SHALL BE SEPARATED FROM THE SERVICE OF THE UNITED STATES, EXCEPT THAT THE HEAD OF ANY SUCCESSOR AGENCY, SUBJECT TO MY APPROVAL, MAY, WITHIN A PERIOD OF FOUR MONTHS AFTER TRANSFER OR CONSOLIDATION, REAPPOINT ANY OF SUCH PERSONNEL REQUIRED FOR THE WORK OF THE SUCCESSOR AGENCY WITHOUT REEXAMINATION OR LOSS OF CIVIL-SERVICE STATUS.

SECTION 21. DEFINITIONS.--- AS USED IN THIS ORDER---

"AGENCY" MEANS ANY COMMISSION, INDEPENDENT ESTABLISHMENT, BOARD, BUREAU, DIVISION, SERVICE, OR OFFICE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

"ABOLISHED AGENCY" MEANS ANY AGENCY WHICH IS ABOLISHED, TRANSFERRED, OR CONSOLIDATED.

"SUCCESSOR AGENCY" MEANS ANY AGENCY TO WHICH IS TRANSFERRED SOME OTHER AGENCY OR FUNCTION, OR WHICH RESULTS FROM THE CONSOLIDATION OF OTHER AGENCIES OR FUNCTIONS.

"FUNCTION DISPOSED OF" MEANS ANY FUNCTION ELIMINATED OR TRANSFERRED.

SECTION 22. EFFECTIVE DATE.--- IN ACCORDANCE WITH LAW, THIS ORDER SHALL BECOME EFFECTIVE 61 DAYS FROM ITS DATE: PROVIDED, THAT IN CASE IT SHALL APPEAR TO THE PRESIDENT THAT THE INTERESTS OF ECONOMY REQUIRE THAT ANY TRANSFER, CONSOLIDATION, OR ELIMINATION BE DELAYED BEYOND THE DATE THIS ORDER BECOMES EFFECTIVE, HE MAY, IN HIS DISCRETION, FIX A LATER DATE THEREFOR, AND HE MAY FOR LIKE CAUSE FURTHER DEFER SUCH DATE FROM TIME TO TIME.

SECTIONS 1, 3, AND 5 OF EXECUTIVE ORDER NO. 6639, DATED MARCH 10, 1934, ISSUED UNDER THE SAME PROVISIONS OF LAW, PROVIDE AS FOLLOWS:

TRANSFER OF FUNCTIONS

1 (A). THE BUREAU OF INDUSTRIAL ALCOHOL AND THE OFFICE OF COMMISSIONER OF INDUSTRIAL ALCOHOL ARE ABOLISHED, AND THE AUTHORITY, RIGHTS, PRIVILEGES, POWERS, AND DUTIES CONFERRED AND IMPOSED BY LAW UPON THE COMMISSIONER OF INDUSTRIAL ALCOHOL ARE TRANSFERRED TO AND SHALL BE HELD, EXERCISED, AND PERFORMED BY THE COMMISSIONER OF INTERNAL REVENUE, AND HIS ASSISTANTS, AGENTS, AND INSPECTORS, UNDER THE DIRECTION OF THE SECRETARY OF THE TREASURY.

(B). THE AUTHORITY, RIGHTS, PRIVILEGES, POWERS, AND DUTIES CONFERRED AND IMPOSED UPON THE ATTORNEY GENERAL BY THE ACT OF MAY 27, 1930 (CH. 342, 46 STAT. 427), ENTITLED "AN ACT TO TRANSFER TO THE ATTORNEY GENERAL CERTAIN FUNCTIONS IN THE ADMINISTRATION OF THE NATIONAL PROHIBITION ACT, TO CREATE A BUREAU OF PROHIBITION IN THE DEPARTMENT OF JUSTICE, AND FOR OTHER PURPOSES," SO FAR AS THEY ARE REQUIRED TO, OR MAY, BE EXERCISED AND PERFORMED UNDER EXISTING LAW, ARE TRANSFERRED TO AND SHALL BE HELD, EXERCISED, AND PERFORMED BY THE COMMISSIONER OF INTERNAL REVENUE, AND HIS ASSISTANTS, AGENTS, AND INSPECTORS, UNDER THE DIRECTION OF THE SECRETARY OF THE TREASURY: PROVIDED, THAT THE ATTORNEY GENERAL SHALL CONTINUE TO EXERCISE THE POWER AND AUTHORITY (A) TO REMIT OR MITIGATE FORFEITURES UNDER THE INTERNAL REVENUE LAWS AND TO DETERMINE LIABILITY FOR INTERNAL REVENUE TAXES AND PENALTIES, IN CONNECTION WITH VIOLATIONS OF THE NATIONAL PROHIBITION ACT OCCURRING PRIOR TO THE REPEAL OF THE EIGHTEENTH AMENDMENT, AND (B) TO INSTITUTE SUITS UPON ANY CAUSE OF ACTION UNDER THE NATIONAL PROHIBITION ACT OR UNDER THE INTERNAL REVENUE LAWS INVOLVING A VIOLATION OF THE NATIONAL PROHIBITION ACT, ARISING PRIOR TO, AND/OR NOT AFFECTED BY, THE REPEAL OF THE EIGHTEENTH AMENDMENT, AND TO COMPROMISE ANY SUCH CAUSE OF ACTION BEFORE OR AFTER SUIT IS BROUGHT: AND PROVIDED FURTHER, THAT THE COMMISSIONER OF INTERNAL REVENUE, SUBJECT TO THE APPROVAL OF THE SECRETARY OF THE TREASURY, SHALL PRESCRIBE ALL REGULATIONS UNDER THE PROVISIONS OF THE NATIONAL PROHIBITION ACT, AND ALL LAWS AMENDATORY THEREOF OR SUPPLEMENTARY THERETO, WHICH WERE NOT RENDERED INOPERATIVE BY THE REPEAL OF THE EIGHTEENTH AMENDMENT, RELATING TO PERMITS, AND HE SHALL PRESCRIBE THE FORM OF ALL APPLICATIONS, BONDS, PERMITS, RECORDS, AND REPORTS UNDER SUCH ACTS.

TRANSFER OF PERSONNEL JURISDICTION OF, THE BUREAU OF INDUSTRIAL ALCOHOL ARE TRANSFERRED TO THE BUREAU OF INTERNAL REVENUE, WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION.

(B) THE OFFICERS AND EMPLOYEES EMPLOYED IN, OR UNDER THE JURISDICTION OF, THE ALCOHOLIC BEVERAGE UNIT OF THE DIVISION OF INVESTIGATION, DEPARTMENT OF JUSTICE, EXCEPT THOSE EMPLOYED IN, OR UNDER THE JURISDICTION OF, THE TAXES AND PENALTIES SECTION OF SAID UNIT, ARE TRANSFERRED TO THE BUREAU OF INTERNAL REVENUE WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION.

(C) OFFICERS AND EMPLOYEES TRANSFERRED TO THE BUREAU OF INTERNAL REVENUE HEREUNDER, WHO DO NOT ALREADY POSSESS A COMPETITIVE CLASSIFIED CIVIL- SERVICE STATUS, SHALL NOT ACQUIRE SUCH STATUS BY REASON OF SUCH TRANSFER, EXCEPT UPON RECOMMENDATION BY THE SECRETARY OF THE TREASURY TO THE CIVIL SERVICE COMMISSION, SUBJECT TO SUCH NONCOMPETITIVE TESTS OF FITNESS AS THE COMMISSION MAY PRESCRIBE; AND NO OFFICER OR EMPLOYEE SO TRANSFERRED MAY BE RETAINED IN THE BUREAU OF INTERNAL REVENUE WITHOUT APPROPRIATE CIVIL- SERVICE STATUS FOR A PERIOD LONGER THAN 60 DAYS FROM THE EFFECTIVE DATE OF THIS ORDER.

GENERAL PROVISIONS

5. EXECUTIVE ORDERS NUMBERED 6166, 6224, AND 6540, DATED JUNE 10, 1933, JULY 27, 1933, AND DECEMBER 28, 1933, RESPECTIVELY, ARE REVOKED INSOFAR AS THEY ARE IN CONFLICT WITH THE PROVISIONS OF THIS ORDER.

THE EFFECTIVE DATE OF SECTION 3 OF EXECUTIVE ORDER NO. 6166, DATED JUNE 10, 1933, WAS NOT SUBSEQUENTLY POSTPONED EITHER BY SAID EXECUTIVE ORDER NO. 6639 OR OTHERWISE, BUT BECAME EFFECTIVE ON AND AFTER AUGUST 10, 1933, PURSUANT TO THE PROVISIONS OF SECTION 22 OF THE SAME EXECUTIVE ORDER.

BASED ON THE DEFINITIONS CONTAINED IN SECTION 21 OF EXECUTIVE ORDER NO. 6166, IT IS CLEAR THAT THE "BUREAU OF PROHIBITION," DEPARTMENT OF JUSTICE, ALL THE FUNCTIONS OF WHICH WERE DISPOSED OF BY SECTION 3 OF THE SAME EXECUTIVE ORDER, WAS AN "ABOLISHED AGENCY" AND THAT, PURSUANT TO THE PROVISIONS OF THE LAST PARAGRAPH OF SECTION 19 OF THE SAME ORDER, ALL PERSONNEL EMPLOYED IN CONNECTION WITH THE WORK OF SUCH "ABOLISHED AGENCY" OR FUNCTION DISPOSED OF, WERE AUTOMATICALLY SEPARATED FROM THE SERVICE OF THE UNITED STATES AT THE CLOSE OF BUSINESS AUGUST 9, 1933. SEE DECISIONS OF AUGUST 2, 1933, A-50257, AND SEPTEMBER 20, 1933, 1933, AND DECEMBER 31, 1933," THE PERIOD FIXED IN THE PROVISO UNDER CONSIDERATION. THE FACT THAT SOME OF THE EMPLOYEES OF SUCH ,ABOLISHED AGENCY" (THE BUREAU OF PROHIBITION, DEPARTMENT OF JUSTICE) WERE REAPPOINTED EFFECTIVE AUGUST 10, 1933, OR THEREAFTER, TO POSITIONS UNDER THE "SUCCESSOR AGENCY" IN THE DEPARTMENT OF JUSTICE, COULD NOT OPERATE TO PLACE THEM IN ANY DIFFERENT STATUS WITH REGARD TO SEPARATION FROM THE SERVICE AT THE CLOSE OF BUSINESS AUGUST 9, 1933, THAN THE PERSONNEL OF THE SAME "ABOLISHED AGENCY" REAPPOINTED EFFECTIVE AUGUST 10, 1933, OR THEREAFTER, TO POSITIONS UNDER THE "SUCCESSOR AGENCY" IN THE TREASURY DEPARTMENT. SEE 13 COMP. GEN. 22. THAT THERE CANNOT BE AND WAS NOT INTENDED TO BE ANY DISTINCTION--- INSOFAR AS THEIR STATUS AS SEPARATED EMPLOYEES IS CONCERNED--- BETWEEN FORMER EMPLOYEES OF THE BUREAU OF PROHIBITION WHO WERE REAPPOINTED IN THE DEPARTMENT OF JUSTICE UNDER THE PROVISIONS OF SECTION 19 OF THE EXECUTIVE ORDER OF JUNE 10, 1933, AND THOSE REAPPOINTED IN THE TREASURY DEPARTMENT UNDER SAID SECTION IS SHOWN BY THE FACT THAT THE PROVISO UNDER CONSIDERATION REFERS SPECIFICALLY TO THE EMPLOYEES SEPARATED FROM "THE SERVICE OF SUCH BUREAU OR UNIT.' HENCE IF AN EMPLOYEE WAS SEPARATED FROM THE SERVICE OF "SUCH BUREAU OR UNIT," THE FACT THAT HE MAY HAVE BEEN REAPPOINTED IN SOME OTHER BUREAU OR UNIT UNDER THE DEPARTMENT OF JUSTICE SO THAT THERE WAS NO BREAK IN HIS PAY STATUS UNDER SAID DEPARTMENT CANNOT OPERATE TO EXEMPT HIM FROM THE EFFECTS OF THE PROVISO IF OTHERWISE WITHIN ITS TERMS. THE WORDS "SEPARATED FROM THE SERVICE" AS USED IN THE PROVISO INCLUDE ALL SEPARATIONS PURSUANT TO THE OPERATION OF THE EXECUTIVE ORDER OF JUNE 10, 1933, REGARDLESS OF WHETHER REAPPOINTED EFFECTIVE AUGUST 10, 1933, AS WELL AS ALL OTHER SEPARATIONS EITHER VOLUNTARY OR INVOLUNTARY.

SECTION 5 OF EXECUTIVE ORDER NO. 6639 OF MARCH 10, 1934, QUOTED ABOVE, DID NOT PURPORT TO, AND LEGALLY COULD NOT, REVOKE OR CHANGE THE STATUS OF SEPARATIONS THERETOFORE CONSUMMATED UNDER THE PROVISIONS OF SECTIONS 3 AND 19 OF EXECUTIVE ORDER NO. 6166 OF JUNE 10, 1933. ACCORDINGLY, THE PROVISIONS OF SECTION 3 OF EXECUTIVE ORDER NO. 6639 OF MARCH 10, 1934, TRANSFERRING THE PERSONNEL OF THE THEN EXISTING "ALCOHOLIC BEVERAGE UNIT OF THE DIVISION OF INVESTIGATION, DEPARTMENT OF JUSTICE" TO THE BUREAU OF INTERNAL REVENUE, UNDER CERTAIN CONDITIONS, MAY NOT BE REGARDED AS HAVING CHANGED THE SEPARATION FROM THE SERVICE EFFECTIVE AUGUST 9, 1933, TO A MERE TRANSFER, NOR AS TAKING OUT OF THE APPROPRIATION PROVISO HERE CONSIDERED THE PERSONNEL WHO WERE EMPLOYED IN THE BUREAU OF PROHIBITION, DEPARTMENT OF JUSTICE, JUNE 10, 1933, AND WHO WERE AUTOMATICALLY SEPARATED AUGUST 9, 1933, PURSUANT TO THE PRIOR EXECUTIVE ORDER. OF COURSE, PERSONS APPOINTED IN THE ALCOHOLIC BEVERAGE UNIT OF THE DIVISION OF INVESTIGATION, DEPARTMENT OF JUSTICE, ON OR AFTER AUGUST 10, 1933, WHO HAD NOT BEEN IN THE BUREAU OF PROHIBITION, DEPARTMENT OF JUSTICE, ON OR AFTER JUNE 10, 1933, AND WHO WERE TRANSFERRED TO THE BUREAU OF INTERNAL REVENUE BY EXECUTIVE ORDER NO. 6639 OF MARCH 10, 1934, WITHOUT BREAK IN SERVICE, ARE NOT WITHIN THE TERMS OF THE APPROPRIATION PROVISO IN QUESTION.

EXCEPT AS HEREINAFTER QUALIFIED, YOUR QUESTION (1) MUST BE AND IS ANSWERED IN THE NEGATIVE.

THE ANSWER TO QUESTION (2) STATED IN YOUR LETTER IS DEPENDENT UPON THE MEANING OR SCOPE TO BE GIVEN TO THE WORDS "ANY OTHER POSITION" APPEARING IN THE PROVISO IMMEDIATELY FOLLOWING THE DESIGNATION OF 11 SPECIFIC TITLES TO POSITIONS. THAT IS, IF PERSONS WHOSE DUTIES WERE CLERICAL OR MECHANICAL IN NATURE ARE WITHIN THE REQUIREMENTS OF THE PROVISO THEY MUST BE WITHIN THE PHRASE ,ANY OTHER POSITION," AS NONE OF THE SPECIFIC CLASSES STATED IN THE ACT REASONABLY MAY BE HELD TO INCLUDE CLERICAL OR MECHANICAL POSITIONS. AS THE STATUTE IS NOT CLEAR IN THIS REGARD, IT BECOMES NECESSARY AND PROPER TO DETERMINE THE LEGISLATIVE INTENT BY APPLICATION OF THE USUAL RULES OF STATUTORY CONSTRUCTION. WHEN A STATUTE, ORDINANCE, OR CONTRACT CONTAINS AN ENUMERATION OF SPECIFIC THINGS OR KINDS OF PERSONS OR PROPERTY COUPLED WITH A GENERAL TERM OR DESCRIPTION, AND THE INTENT IS NOT OTHERWISE SHOWN, THERE IS UNIVERSALLY APPLIED BY THE COURTS, BOTH FEDERAL AND STATE, THE WELL-KNOWN EJUSDEM GENERIS RULES, WHEREBY THE GENERAL TERM OR DESCRIPTION IS COMMONLY UNDERSTOOD TO INCLUDE ONLY THOSE SIMILAR IN NATURE AND KIND TO THOSE SPECIFICALLY ENUMERATED IN THE STATUTE, ORDINANCE, OR CONTRACT. UNITED STATES V. BEVANS, 3 WHEAT. 336, 389; MISSOURI PACIFIC RAILWAY COMPANY V. UNITED STATES, 211 FED. 893, 896; GUNDLING V. CHICAGO, 176 ILL. 340, 346; 48 L.R.A. 230, 232. THE RECOGNIZED AUTHORITIES ON STATUTORY CONSTRUCTION ARE TO THE SAME EFFECT. SEE POPE'S LEGAL DEFINITIONS, VOLUME I, PAGES 449, 450; LEWIS' SUTHERLAND STATUTORY CONSTRUCTION, VOLUME II, SECTIONS 422-434; AND 59 CORPUS JURIS 981. THERE ARE NUMEROUS FEDERAL AND STATE DECISIONS CITED IN EACH OF THESE AUTHORITIES IN SUPPORT OF THE RULE. THERE IS NOTHING IN THE TERMS OF THE APPROPRIATION PROVISO IN QUESTION SHOWING A LEGISLATIVE INTENT THAT THE PHRASE "ANY OTHER POSITION" SHOULD BE GIVEN ANY MEANING OTHER THAN THAT REQUIRED BY APPLICATION OF THE USUAL RULE OF STATUTORY CONSTRUCTION. NEITHER DOES A CONSIDERATION OF THE LEGISLATIVE HISTORY OF THE PROVISO OR OF THE CONDITION APPARENTLY SOUGHT TO BE REMEDIED BY ITS ENACTMENT DISCLOSE THAT THE PHRASE WAS INTENDED TO BE ALL INCLUSIVE.

IT MUST BE PRESUMED THAT SOME POSITIONS IN THE FORMER PROHIBITION BUREAU OR ALCOHOLIC BEVERAGE UNIT WERE NOT INTENDED TO BE WITHIN THE PROVISO. OTHERWISE, IT IS TO BE PRESUMED THE VARIOUS CLASSES OF EMPLOYEES WOULD NOT HAVE BEEN ENUMERATED BECAUSE IF IT HAD BEEN INTENDED TO APPLY TO ALL EMPLOYEES OF SUCH BUREAU AND UNIT SUCH INTENT COULD HAVE BEEN SO CLEARLY AND EASILY INDICATED BY OMITTING ALL REFERENCE TO CLASSES OR KINDS OF POSITIONS AND REFERRING ONLY TO "ANY PERSON FORMERLY EMPLOYED IN THE PROHIBITION BUREAU OR ALCOHOLIC BEVERAGE UNIT.'

IT MUST BE HELD, THEREFORE, THAT THE PHRASE "ANY OTHER POSITION" AS USED IN THE PROVISO MEANS ANY POSITION OF A CLASS OR KIND SIMILAR TO THOSE SPECIFICALLY MENTIONED.

SINCE THE INHIBITION OF THE PROVISO APPLIES ONLY TO PERSONS WHO HELD IN THE BUREAU OF PROHIBITION OR THE ALCOHOLIC BEVERAGE UNIT A POSITION INVOLVING DUTIES OF THE CLASSES ENUMERATED IN THE PROVISO OR DUTIES SIMILAR THERETO, AND ONLY WHILE SUCH PERSON IS SERVING BETWEEN DECEMBER 1, 1934, AND JULY 1, 1935, IN "ANY SUCH POSITION" IN THE TREASURY DEPARTMENT- -- AND AS THOSE IN THE CLERICAL AND MECHANICAL GROUPS COULD NOT BY ANY REASONABLE CONSTRUCTION OR INTERPRETATION BE REGARDED AS SIMILAR TO ANY OF THE POSITIONS ENUMERATED IN THE PROVISO--- YOUR QUESTION (2) IS ANSWERED IN THE AFFIRMATIVE.