B-122827, MARCH 1, 1955, 34 COMP. GEN. 410

B-122827, MARCH 1, 1955, 34 COMP. GEN. 410

INTERIOR DEPARTMENT - FISH AND WILDLIFE SERVICE - REORGANIZATION PLANS - INCONSISTENT PROVISIONS THE PROVISION IN SECTION 3 OF REORGANIZATION PLAN NO. 3 OF 1940, WHICH LIMITS THE ADMINISTRATION OF THE FISH AND WILDLIFE SERVICE TO A DIRECTOR AND NOT MORE THAN TWO ASSISTANT DIRECTORS, IS IRRECONCILABLE WITH AND REPEALED BY IMPLICATION BY REORGANIZATION PLAN NO. 3 OF 1950, WHICH TRANSFERS ALL FUNCTIONS OF THE DIRECTOR AND ASSISTANT DIRECTORS TO THE SECRETARY OF THE INTERIOR AND AUTHORIZES THE PERFORMANCE OF SUCH FUNCTIONS BY ANY OFFICER, AGENCY OR EMPLOYEE DESIGNATED BY THE SECRETARY, AND, THEREFORE, THE SECRETARY IS NOT LIMITED TO THE NUMBER OF OFFICERS SPECIFIED IN REORGANIZATION PLAN NO. 3 OF 1940 IN ADMINISTERING THE SERVICE.

COMPTROLLER GENERAL CAMPBELL TO THE SECRETARY OF THE INTERIOR, MARCH 1, 1955:

REFERENCE IS MADE TO LETTER OF FEBRUARY 3, 1955, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, WHICH FORWARDED AN OPINION OF YOUR ACTING SOLICITOR TO THE EFFECT THAT YOU ARE VESTED WITH AUTHORITY TO ESTABLISH A POSITION OF " ASSOCIATE" OR " DEPUTY" DIRECTOR OF THE FISH AND WILDLIFE SERVICE. BEFORE PROCEEDING WITH THE ESTABLISHMENT OF SUCH POSITION, YOUR DEPARTMENT INQUIRES AS TO WHETHER WE WOULD APPROVE SALARY PAYMENTS TO AN OFFICER APPOINTED AS " ASSOCIATE" OR " DEPUTY" DIRECTOR OF THE FISH AND WILDLIFE SERVICE.

THE FISH AND WILDLIFE SERVICE, AS SUCH, WAS CREATED BY THE CONSOLIDATION INTO A SINGLE AGENCY OF THE BUREAU OF FISHERIES AND THE BUREAU OF BIOLOGICAL SURVEY. THIS CONSOLIDATION WAS EFFECTED BY SECTION 3 OF REORGANIZATION PLAN NO. 3 OF 1940, 54 STAT. 1232. SUCH SECTION IS, IN PART, AS FOLLOWS:

* * * THE FUNCTIONS OF THE CONSOLIDATED AGENCY SHALL BE ADMINISTERED UNDER THE DIRECTION AND SUPERVISION OF THE SECRETARY OF THE INTERIOR BY A DIRECTOR AND NOT MORE THAN TWO ASSISTANT DIRECTORS, WHO SHALL BE APPOINTED BY THE SECRETARY AND PERFORM SUCH DUTIES AS HE SHALL PRESCRIBE. * * * THE OPINION OF YOUR ACTING SOLICITOR IS PREDICATED UPON THE FOLLOWING PROVISIONS APPEARING IN REORGANIZATION PLAN NO. 3 OF 1950, 64 STAT. 1262:

SECTION 1. TRANSFER OF FUNCTIONS TO THE SECRETARY.--- (A) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (B) OF THIS SECTION, THERE ARE HEREBY TRANSFERRED TO THE SECRETARY OF THE INTERIOR ALL FUNCTIONS OF ALL OTHER OFFICERS OF THE DEPARTMENT OF THE INTERIOR AND ALL FUNCTIONS OF ALL AGENCIES AND EMPLOYEES OF SUCH DEPARTMENT.

SEC. 2. PERFORMANCE OF FUNCTIONS OF SECRETARY.--- THE SECRETARY OF THE INTERIOR MAY FROM TIME TO TIME MAKE SUCH PROVISIONS AS HE SHALL DEEM APPROPRIATE AUTHORIZING THE PERFORMANCE BY ANY OTHER OFFICER, OR BY ANY AGENCY OR EMPLOYEE, OF THE DEPARTMENT OF THE INTERIOR OF ANY FUNCTION OF THE SECRETARY, INCLUDING ANY FUNCTION TRANSFERRED TO THE SECRETARY BY THE PROVISIONS OF THIS REORGANIZATION PLAN.

SEC. 5. INCIDENTAL TRANSFERS.--- THE SECRETARY OF THE INTERIOR MAY FROM TIME TO TIME EFFECT SUCH TRANSFERS WITHIN THE DEPARTMENT OF THE INTERIOR OF ANY OF THE RECORDS, PROPERTY, PERSONNEL, AND UNEXPENDED BALANCES (AVAILABLE OR TO BE MADE AVAILABLE) OF APPROPRIATIONS, ALLOCATIONS, AND OTHER FUNDS OF SUCH DEPARTMENT AS HE MAY DEEM NECESSARY IN ORDER TO CARRY OUT THE PROVISIONS OF THIS REORGANIZATION PLAN.

SUCH PROVISIONS ARE VIEWED BY YOUR ACTING SOLICITOR AS SUPERSEDING AND REPLACING THOSE CONTAINED IN THE EARLIER REORGANIZATION PLAN WHICH PROVIDED FOR THE ADMINISTRATION OF THE FISH AND WILDLIFE SERVICE BY A DIRECTOR AND NOT MORE THAN TWO ASSISTANT DIRECTORS.

THE EFFECT OF A REORGANIZATION PLAN WHICH HAS NOT BEEN REJECTED BY THE CONGRESS IN THE MANNER PRESCRIBED BY SECTION 6 OF THE REORGANIZATION ACT OF 1949, 63 STAT. 205, IS TANTAMOUNT TO THAT OF A STATUTE. IT HAS THE FORCE AND EFFECT OF LAW. WHERE THERE IS AN APPARENT INCONSISTENCY BETWEEN THE PROVISIONS OF ANY TWO REORGANIZATION PLANS DEALING WITH THE SAME SUBJECT, THERE WOULD APPEAR TO BE FOR APPLICATION THE SAME GENERAL RULES OF CONSTRUCTION THAT ARE APPLIED IN RESOLVING QUESTIONS ARISING AS A RESULT OF CONFLICTING STATUTES.

IT IS WELL ESTABLISHED THAT A STATUTE MAY BE REPEALED BY IMPLICATION AS WELL AS BY EXPRESS TERMS. HOWEVER, REPEALS BY IMPLICATION ARE NOT FAVORED AND A LATER LAW WILL NOT BE CONSTRUED AS REPEALING AN EARLIER LAW UNLESS THE TWO LAWS ARE IN IRRECONCILABLE CONFLICT. SEE 50 AM. JUR; STATUTES, 543, 29 COMP. GEN. 528, 530; 28 ID. 7, 9, 26 ID. 488, 491. THE QUOTED PORTION OF SECTION 3 OF REORGANIZATION PLAN NO. 3 OF 1940 PROVIDES FOR THE ADMINISTRATION OF THE FUNCTIONS OF THE FISH AND WILDLIFE SERVICE BY A DIRECTOR AND NOT MORE THAN TWO ASSISTANT DIRECTORS. ON THE OTHER HAND, REORGANIZATION PLAN NO. 3 OF 1950, AMONG OTHER THINGS, TRANSFERS ALL FUNCTIONS OF THE DIRECTOR AND ASSISTANT DIRECTORS OF THE FISH AND WILDLIFE SERVICE TO THE SECRETARY OF THE INTERIOR AND AUTHORIZES THE PERFORMANCE OF ANY OR ALL SUCH FUNCTIONS TRANSFERRED TO THE SECRETARY BY ANY OFFICER, AGENCY, OR EMPLOYEE OF THE INTERIOR DEPARTMENT WHO MAY BE DESIGNATED BY THE SECRETARY. IT IS CLEAR THAT THE AUTHORITY THUS VESTED IN THE SECRETARY TO TRANSFER THE FUNCTIONS OF THE FISH AND WILDLIFE SERVICE TO SOME OTHER OFFICER OR AGENCY OF THE DEPARTMENT IS WHOLLY INCONSISTENT WITH THE PROVISIONS OF THE PRIOR REORGANIZATION PLAN REQUIRING THAT THE FUNCTIONS OF THE FISH AND WILDLIFE SERVICE BE ADMINISTERED BY A DIRECTOR AND NOT TO EXCEED TWO ASSISTANT DIRECTORS. IN THAT RESPECT, THE TWO REORGANIZATION PLANS APPEAR TO BE IN IRRECONCILABLE CONFLICT. UNDER SETTLED RULES OF STATUTORY CONSTRUCTION, THE FORMER PLAN MUST YIELD TO THE PROVISIONS OF THE LATER PLAN, WHICH REASONABLY MAY BE REGARDED AS HAVING REPEALED BY IMPLICATION THE PROVISIONS OF THE FORMER PLAN REQUIRING THAT THE FUNCTIONS OF THE FISH AND WILDLIFE SERVICE BE ADMINISTERED BY A DIRECTOR AND NOT MORE THAN TWO ASSISTANT DIRECTORS. IT FOLLOWS, THEREFORE, THAT THE FORMER PLAN, INSOFAR AS IT LIMITS THE NUMBER OF PRINCIPAL OFFICERS THAT MAY BE APPOINTED TO ADMINISTER THE FUNCTIONS OF THE FISH AND WILDLIFE SERVICE, IS NO LONGER EFFECTIVE. YOUR DEPARTMENT'S INQUIRY IS ANSWERED ACCORDINGLY.