B-6288, NOVEMBER 4, 1939, 19 COMP. GEN. 492

B-6288, NOVEMBER 4, 1939, 19 COMP. GEN. 492

ALIENS - EMPLOYMENT - STATUTORY PROHIBITION - EFFECT OF SUBSEQUENT GENERAL LEGISLATION DEALING WITH STATUS OF FILIPINOS A GENERAL STATUTE IS NOT TO BE CONSTRUED AS AFFECTING THE OPERATION OF AN EARLIER SPECIAL STATUTE UNLESS THE SPECIAL STATUTE IS EXPRESSLY REPEALED OR IS SO WHOLLY INCONSISTENT THAT ITS REPEAL OF NECESSITY MUST BE IMPLIED. SECTION 2 OF THE ACT OF AUGUST 7, 1939, 53 STAT. 1230, PROVIDING THAT PENDING COMPLETE WITHDRAWAL OF THE UNITED STATES SOVEREIGNTY OVER THE PHILIPPINE ISLANDS,"CITIZENS AND CORPORATIONS" OF THE ISLANDS SHALL ENJOY IN THE UNITED STATES "ALL OF THE RIGHTS AND PRIVILEGES WHICH THEY * * * ENJOYED THEREIN UNDER THE LAWS OF THE UNITED STATES IN FORCE AT THE TIME OF THE INAUGURATION OF THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINE ISLANDS," IS GENERAL IN CHARACTER AND DOES NOT MODIFY EXISTING SPECIFIC STATUTORY PROVISIONS, SUCH AS SECTION 5 OF THE TREASURY POST OFFICE APPROPRIATION ACT FOR 1939, 52 STAT. 148, RESTRICTING THE GOVERNMENT EMPLOYMENT, IN THE CONTINENTAL UNITED STATES, OF FILIPINO AND OTHER NONCITIZENS OF THE UNITED STATES.

COMPTROLLER GENERAL BROWN TO THE FEDERAL SECURITY ADMINISTRATOR, NOVEMBER 4, 1939:

THERE WAS RECEIVED YOUR LETTER OF SEPTEMBER 26, 1939, AS FOLLOWS:

REFERENCE IS MADE TO DECISION A-95291, DATED JUNE 2, 1938, TO THE SECRETARY OF THE TREASURY, INTERPRETING SECTION 5 OF THE TREASURY POST OFFICE APPROPRIATION ACT FOR 1939, 52 STAT. 120, PROVIDING:

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES * * * WHOSE POST OF DUTY IS IN THE CONTINENTAL UNITED STATES UNLESS SUCH OFFICER OR EMPLOYEE IS A CITIZEN OF THE UNITED STATES OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO * * * OWES ALLEGIANCE TO THE UNITED STATES * * *.'

IN THE INTERPRETATION OF THIS PROVISION, IT WAS STATED: " FILIPINOS APPOINTED AFTER MARCH 28, 1938, TO POSITIONS WITH POSTS OF DUTY IN THE CONTINENTAL UNITED STATES MAY NOT BE EXEMPTED FROM THE RESTRICTIONS.'

PUBLIC NO. 300, 76TH CONGRESS, APPROVED BY THE PRESIDENT AUGUST 7, 1939, PROVIDES AS FOLLOWS:

"SECTION 2. SECTION 8 OF SAID ACT OF MARCH 24, 1934, IS HEREBY AMENDED BY ADDING THERETO A NEW SUBSECTION AS FOLLOWS:

"/D) PENDING THE FINAL AND COMPLETE WITHDRAWAL OF THE SOVEREIGNTY OF THE UNITED STATES OVER THE PHILIPPINE ISLANDS, EXCEPT AS OTHERWISE PROVIDED BY THIS ACT, CITIZENS AND CORPORATIONS OF THE PHILIPPINE ISLANDS SHALL ENJOY IN THE UNITED STATES AND ALL PLACES SUBJECT TO ITS JURISDICTION ALL OF THE RIGHTS AND PRIVILEGES WHICH THEY RESPECTIVELY SHALL HAVE ENJOYED THEREIN UNDER THE LAWS OF THE UNITED STATES IN FORCE AT THE TIME OF THE INAUGURATION OF THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINE ISLANDS.'

IN VIEW OF THE APPARENT CONFLICT BETWEEN THE PROVISIONS OF THE TWO ABOVE- MENTIONED ACTS, AND IN VIEW OF THE FURTHER FACT THAT A SIMILAR PROVISION REGARDING CITIZENSHIP IS INCORPORATED IN THE APPROPRIATION ACT UNDER WHICH THE PUBLIC HEALTH SERVICE IS OPERATING DURING THE FISCAL YEAR 1940, A DECISION IS REQUESTED AS TO WHETHER THE PROVISIONS OF SECTION 2, PUBLIC NO. 300, SUPERSEDE OR REPEAL THE PROVISIONS OF SECTION 5 OF THE TREASURY- POST OFFICE APPROPRIATION ACT FOR 1939, SUPRA, AS APPLIED TO THE FUTURE EMPLOYMENT OF FILIPINOS WITHIN THE CONTINENTAL UNITED STATES.

THE CITED ACT OF AUGUST 7, 1939, 53 STAT. 1230, AMENDED IN VARIOUS PARTICULARS THE ACT OF MARCH 24, 1934, 48 STAT. 456,"TO PROVIDE FOR THE COMPLETE INDEPENDENCE OF THE PHILIPPINE ISLANDS, TO PROVIDE FOR THE ADOPTION OF A CONSTITUTION AND A FORM OF GOVERNMENT FOR THE PHILIPPINE ISLANDS, AND FOR OTHER PURPOSES.' THE AMENDMENTS INVOLVED PRINCIPALLY TRADE, FINANCIAL, AND ECONOMIC RELATIONS BETWEEN THE PHILIPPINE ISLANDS AND THE UNITED STATES. SECTION 7 (A) OF THE AMENDATORY ACT PROVIDES THAT THE FIRST FIVE SECTIONS THEREOF, INCLUDING SECTION 2 HERE IN QUESTION, SHALL BECOME EFFECTIVE ON JANUARY 1, 1940, IF BEFORE THAT DATE THE PHILIPPINE GOVERNMENT HAS MET CERTAIN STIPULATED CONDITIONS. THUS, SO FAR AS THAT MAY BE MATERIAL, SECTION 2 IS NOT NOW IN EFFECT AND IT IS POSSIBLE THAT IT MAY NEVER BECOME EFFECTIVE.

THE SAID SECTION 2, QUOTED IN YOUR LETTER, WHEN AND IF IT BECOMES EFFECTIVE, WILL AMEND THE 1934 ACT TO PROVIDE GENERALLY THAT PENDING THE FINAL AND COMPLETE WITHDRAWAL OF UNITED STATES SOVEREIGNTY OVER THE PHILIPPINE ISLANDS,"CITIZENS AND CORPORATIONS" OF THE PHILIPPINE ISLANDS SHALL ENJOY IN THE UNITED STATES AND PLACES SUBJECT TO ITS JURISDICTION "ALL OF THE RIGHTS AND PRIVILEGES WHICH THEY RESPECTIVELY SHALL HAVE ENJOYED THEREIN UNDER THE LAWS OF THE UNITED STATES IN FORCE AT THE TIME OF THE INAUGURATION OF THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINE ISLANDS.' PRIOR TO ENACTMENT THE PURPOSE OF THIS PARTICULAR PROVISION APPEARING IN SEPARATE HOUSE AND SENATE BILLS WAS STATED IN LEGISLATIVE REPORTS ON SUCH BILLS FROM THE SENATE COMMITTEE ON TERRITORIES AND INSULAR AFFAIRS AND THE HOUSE COMMITTEE ON INSULAR AFFAIRS ( SENATE REPT. NO. 453; H.R. REPT. NO. 1058; 76TH CONG., ST SESS.) AS FOLLOWS:

WHILE THE RIGHTS AND PRIVILEGES OF AMERICAN CITIZENS IN THE PHILIPPINES ARE ADEQUATELY PROVIDED FOR IN THE ACT OF MARCH 24, 1934, THERE IS NO CORRESPONDING PROVISION FOR FILIPINOS IN THE UNITED STATES. THE BILL CONTAINS A PROVISION DESIGNED TO CLARIFY MISCONCEPTIONS WHICH HAVE ARISEN WITH REGARD TO THE STATUS PRIOR TO 1946 OF FILIPINOS IN THE UNITED STATES AND TO GUARD AGAINST POTENTIAL DISCRIMINATIONS ( "POSSIBLE DISCRIMINATIONS" IN THE H.R. REPORT) AGAINST SUCH FILIPINOS.

THE PROVISION IN QUESTION IS GENERAL LEGISLATION. IT WAS DESIGNED TO "CLARIFY MISCONCEPTIONS" AS TO THE STATUS OF FILIPINOS IN THE UNITED STATES AND TO GUARD AGAINST POTENTIAL OR POSSIBLE DISCRIMINATIONS AGAINST SUCH FILIPINOS BY REASON OF DOUBT AS TO THEIR STATUS PENDING THE FINAL AND COMPLETE WITHDRAWAL OF UNITED STATES SOVEREIGNTY OVER THE PHILIPPINE ISLANDS PURSUANT TO THE 1934 ACT. WHILE THE SAID AMENDMENT PROVIDES GENERALLY THAT PENDING SUCH WITHDRAWAL OF UNITED STATES SOVEREIGNTY, CITIZENS AND CORPORATIONS "OF THE PHILIPPINE ISLANDS" SHALL ENJOY IN THE UNITED STATES "ALL OF THE RIGHTS AND PRIVILEGES" WHICH THEY RESPECTIVELY ENJOYED THEREIN UNDER THE LAWS OF THE UNITED STATES IN FORCE AT THE TIME OF THE INAUGURATION OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, THERE WAS NO INTENT EXPRESSED OR NECESSARILY IMPLIED TO REPEAL OR MODIFY EXISTING SPECIFIC STATUTORY PROVISIONS, SUCH AS THAT IN SECTION 5 OF THE APPROPRIATION ACT OF MARCH 28, 1938, QUOTED IN YOUR LETTER, IN EFFECT RESTRICTING GOVERNMENT EMPLOYMENT IN THE CONTINENTAL UNITED STATES, UNDER CERTAIN APPROPRIATIONS AND WITH CERTAIN EXCEPTIONS, TO CITIZENS OF THE UNITED STATES, AND THUS HAVING THE EFFECT OF EXCLUDING NONCITIZENS OF THE UNITED STATES, INCLUDING FILIPINO NONCITIZENS, FROM SUCH EMPLOYMENT. COMP. GEN. 1047. SIMILAR SPECIFIC PROVISIONS ARE CONTAINED IN SECTION 5 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1940, 53 STAT. 550, SECTION 5 OF THE ACT MAKING APPROPRIATIONS FOR THE TREASURY AND POST OFFICE DEPARTMENTS FOR 1940, 53 STAT. 683, AND SECTION 3 OF THE LABOR DEPARTMENT APPROPRIATION ACT FOR 1940, 53 STAT. 926. ALSO, SECTION 206 OF THE THIRD DEFICIENCY APPROPRIATION ACT, 53 STAT. 1337, WHICH WAS APPROVED AUGUST 9, 1939, OR SUBSEQUENT TO THE ACT OF AUGUST 7, 1939, AMENDING THE PHILIPPINE INDEPENDENCE ACT OF 1934, MAKES SUCH PROVISIONS OF SECTION 3 OF THE LABOR DEPARTMENT APPROPRIATION ACT FOR 1940 APPLICABLE TO THE APPROPRIATIONS CONTAINED IN THE ACT MAKING APPROPRIATIONS FOR THE DEPARTMENTS OF STATE, JUSTICE, AND COMMERCE FOR 1940, 53 STAT. 885. SUCH EXCLUSION FROM GOVERNMENT EMPLOYMENT IN THE CONTINENTAL UNITED STATES OF FILIPINOS WHO ARE NOT CITIZENS OF THE UNITED STATES IS NOT DUE TO ANY MISCONCEPTION OF THEIR STATUS BY REASON OF THE 1934 PHILIPPINE INDEPENDENCE ACT, BUT SOLELY TO SPECIFIC STATUTORY PROVISIONS HAVING THE EFFECT OF RESTRICTING SUCH EMPLOYMENT TO CITIZENS OF THE UNITED STATES. THESE SPECIFIC PROVISIONS WOULD HAVE HAD THAT EFFECT IRRESPECTIVE OF THE ENACTMENT OF THE 1934 PHILIPPINE INDEPENDENCE ACT AND THERE IS NO INTENT EVIDENCED IN THE AMENDMENT OF AUGUST 7, 1939, TO THAT ACT, TO CONFER RIGHTS OR RESTORE PRIVILEGES WHICH MAY HAVE BEEN TAKEN AWAY OR LIMITED BY THE OPERATION OF SUCH OTHER SPECIFIC LEGISLATION. THAT THE 1939 AMENDMENT WAS NOT PARTICULARLY DIRECTED TO THIS MATTER OF RESTRICTIONS ON GOVERNMENT EMPLOYMENT WITHIN THE CONTINENTAL UNITED STATES IS SHOWN NOT ONLY BY THE ABSENCE OF ANY REFERENCE THERETO, BUT BY THE GENERAL FORM OF THE AMENDMENT, AND BY THE USE OF THE TERM "CITIZENS AND CORPORATIONS OF THE PHILIPPINE ISLANDS.' HAD THE LEGISLATIVE PURPOSE BEEN PARTICULARLY TO RESTORE ANY PRIVILEGE OF EMPLOYMENT IN GOVERNMENT POSITIONS IN THE UNITED STATES TO CITIZENS OF THE PHILIPPINE ISLANDS TAKEN AWAY BY THE OPERATION OF OTHER SPECIFIC STATUTORY PROVISIONS, SOME REFERENCE THERETO WOULD BE EXPECTED, AND THERE WOULD HAVE BEEN NO OCCASION TO INCLUDE "CORPORATIONS" IN THE AMENDMENT. IT SEEMS CLEAR, THEREFORE, THAT THE PROVISIONS OF THE 1939 AMENDMENT IN QUESTION ARE GENERAL AND WERE ENACTED WITHOUT ANY PARTICULAR INTENT TO MODIFY EXISTING SPECIFIC STATUTORY PROVISIONS AFFECTING FILIPINO EMPLOYMENT IN GOVERNMENT POSITIONS IN THE UNITED STATES.

IT IS AN ESTABLISHED RULE OF STATUTORY INTERPRETATION THAT A LATER GENERAL STATUTE IS NOT TO BE CONSTRUED AS AFFECTING THE OPERATION OF AN EARLIER SPECIAL STATUTE UNLESS THE SPECIAL STATUTE IS EXPRESSLY REPEALED OR IS SO WHOLLY INCONSISTENT THAT ITS REPEAL MUST OF NECESSITY BE IMPLIED. UNITED STATES V. NIX, 189 U.S. 199; RODGERS V. UNITED STATES, 185 U.S. 83; EX PARTE CROW DOG, 109 U.S. 556, 570; WASHINGTON V. MILLER, 235 U.S. 422. IN THE RECENT CASE OF BALTIMORE NATIONAL BANK V. TAX COMMISSION, 297 U.S. 209, 215, THE SUPREME COURT SAID:

* * * AN EARLIER ACT, SPECIFIC IN ITS COVERAGE, WILL BE READ AS AN EXCEPTION TO A LATER ONE DIRECTED TO INVESTMENTS GENERALLY. "IT IS A WELL -SETTLED PRINCIPLE OF CONSTRUCTION THAT SPECIFIC TERMS COVERING THE GIVEN SUBJECT MATTER WILL PREVAIL OVER GENERAL LANGUAGE OF THE SAME OR ANOTHER STATUTE WHICH MIGHT OTHERWISE PROVE CONTROLLING.' KEPNER V. UNITED STATES, 195 U.S. 100, 125; CF. GINSBERG AND SONS V. POPKIN, 285 U.S. 204, 208; IN RE EAST RIVER CO., 266 U.S. 355, 367; WASHINGTON V. MILLER, 235 U.S. 422, 428; ROSENCRANS V. UNITED STATES, 165 U.S. 257, 262; RED ROCK V. HENRY, 106 U.S. 596, 603. * * *

THE RULE WAS DISCUSSED IN EX PARTE CROW DOG, 109 U.S. 556, 570, AS FOLLOWS:

THE LANGUAGE OF THE EXCEPTION IS SPECIAL AND EXPRESS; THE WORDS RELIED ON AS A REPEAL ARE GENERAL AND INCONCLUSIVE. THE RULE IS, GENERALIA SPECIALIBUS NON DEROGANT. "THE GENERAL PRINCIPLE TO BE APPLIED," SAID BOVILL, C. J., IN THORPE V. ADAMS, L.R. 6 C.P. 135,"TO THE CONSTRUCTION OF ACTS OF PARLIAMENT IS THAT A GENERAL ACT IS NOT TO BE CONSTRUED TO REPEAL A PREVIOUS PARTICULAR ACT, UNLESS THERE IS SOME EXPRESS REFERENCE TO THE PREVIOUS LEGISLATION ON THE SUBJECT, OR UNLESS THERE IS A NECESSARY INCONSISTENCY IN THE TWO ACTS STANDING TOGETHER.' "AND THE REASON IS," SAID WOOD, V. C., IN FITZGERALD V. CHAMPENYS, 30 L.J.N.S. EQ. 782; 2 JOHNS AND HEM. 31-54,"THAT THE LEGISLATURE HAVING HAD ITS ATTENTION DIRECTED TO A SPECIAL SUBJECT, AND HAVING OBSERVED ALL THE CIRCUMSTANCES OF THE CASE AND PROVIDED FOR THEM, DOES NOT INTEND BY A GENERAL ENACTMENT AFTERWARDS TO DEROGATE FROM ITS OWN ACT WHEN IT MAKES NO SPECIAL MENTION OF ITS INTENTION SO TO DO.'

IN WASHINGTON V. MILLER, 235 U.S. 422, 427, IT WAS SAID:

NO REPEALING CLAUSE ACCOMPANIED THIS PROVISION, SO THE QUESTION IS, DID IT REPEAL THE PROVISOS BY IMPLICATION? THERE IS NO DOUBT THAT, IF TAKEN LITERALLY, IT WOULD SUBJECT THE CREEK LANDS TO THE ARKANSAS LAW OF DESCENT AND DISTRIBUTION WITHOUT ANY QUALIFICATION OR RESTRICTION. BUT THIS WOULD BE ONLY BY REASON OF THE GENERALITY OF ITS TERMS, FOR IT MADE NO MENTION OF THAT LAW OR OF THOSE LANDS. IN SHORT, IT WAS PLAINLY A GENERAL STATUTE AND DID NOT SHOW THAT THE ATTENTION OF CONGRESS WAS THEN PARTICULARLY DIRECTED TO THE DESCENT OF THE LANDS OF THE CREEKS. ON THE OTHER HAND, SECTION 6 OF THE SUPPLEMENTAL AGREEMENT AND ITS TWO PROVISOS DEALT WITH THAT SUBJECT IN SPECIFIC AND POSITIVE TERMS WHICH MADE IT CERTAIN THAT THE CREEKS AND THEIR LANDS WERE PARTICULARLY IN MIND AT THE TIME. IN THESE CIRCUMSTANCES WE THINK THERE WAS NO IMPLIED REPEAL, AND FOR THESE REASONS: FIRST, SUCH REPEALS ARE NOT FAVORED, AND USUALLY OCCUR ONLY WHERE THERE IS SUCH AN IRRECONCILABLE CONFLICT BETWEEN AN EARLIER AND A LATER STATUTE THAT EFFECT REASONABLY CANNOT BE GIVEN TO BOTH ( UNITED STATES V. HEALEY, 160 U.S. 136, 146; UNITED STATES V. GREATHOUSE, 166 U.S. 601, 605); SECOND, WHERE THERE ARE TWO STATUTES UPON THE SAME SUBJECT, THE EARLIER BEING SPECIAL AND THE LATER GENERAL, THE PRESUMPTION IS, IN THE ABSENCE OF AN EXPRESS REPEAL, OR AN ABSOLUTE INCOMPATIBILITY, THAT THE SPECIAL IS INTENDED TO REMAIN IN FORCE AS AN EXCEPTION TO THE GENERAL ( TOWNSEND V. LITTLE, 109 U.S. 504, 512; EX PARTE CROW DOG, ID. 556; 570; RODGERS V. UNITED STATES, 185 U.S. 83, 87-89); AND, THIRD, THERE WAS IN THIS INSTANCE NO IRRECONCILABLE CONFLICT OR ABSOLUTE INCOMPATIBILITY, FOR BOTH STATUTES COULD BE GIVEN REASONABLE OPERATION IF THE PRESUMPTION JUST NAMED WERE RECOGNIZED.

THESE PRINCIPLES APPEAR CLEARLY APPLICABLE TO THE PRESENT QUESTION. THERE IS NO "IRRECONCILABLE CONFLICT OR ABSOLUTE INCOMPATIBILITY" BETWEEN THE GENERAL PROVISIONS OF SECTION 2 OF THE ACT OF AUGUST 2, 1939, RESPECTING THE RIGHTS AND PRIVILEGES OF PHILIPPINE CITIZENS AND CORPORATIONS IN THE UNITED STATES AND THE SPECIFIC PROVISIONS OF PRIOR ACTS HAVING THE EFFECT OF RESTRICTING GOVERNMENT EMPLOYMENT IN THE UNITED STATES UNDER PARTICULAR APPROPRIATIONS TO CITIZENS OF THE UNITED STATES. SUCH GENERAL PROVISIONS HAVE A BROAD FIELD OF REASONABLE OPERATION ASIDE FROM THE PRIOR SPECIFIC PROVISIONS RESPECTING EMPLOYMENT OF GOVERNMENT PERSONNEL; AND, TO THE EXTENT THAT THERE MAY BE ANY CONFLICT BETWEEN THE GENERAL STATUTE AND SUCH PRIOR SPECIFIC STATUTORY RESTRICTIONS, THE LATTER ARE TO BE CONSIDERED AS EXCEPTIONS TO THE GENERAL STATUTE. IT FOLLOWS THAT THE QUESTION STATED IN THE LAST PARAGRAPH OF YOUR LETTER MUST BE ANSWERED IN THE NEGATIVE.