Reorganization Plans Nos. 2, 3, and 4, 1952

"SEC. 5. (a) No reorganization plan shall provide for, and no reorganization under this Act shall have the effect of

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"(5) increasing the term of any office beyond that provided by law such office; or It is clearly arguable from this provision alone that the changing of a definite term of an office to an indefinite term is not consonant with this provision.

To support our answer, we turn to rules of statutory construction. There is no need for Congress to assist in the further destruction of the "plain meaning" doctrine in construing the Reorganization Act of 1949. As examples of such destruction, see U. S. v. Dickerson (1940, 310 U. S. 554, 562) and U. S. v. American Trucking Associations, Inc. (1940, 310 U. S. 534, 543). According to one writer, the plain meaning rule dominated statutory construction in the Federal courts for a long time. When carried to the extreme this tended to obliterate the judicial obligation of the legislature. He states that in the late 1930's the Supreme Court adopted a philosophy of self-restraint toward legislative regulation in the economic areas. This greater emphasis on congressional will, he says, seems to have led to the extensive use of extrinsic aids for its ascertainment. Recent criticism of this technique of statutory construction stresses its tendency to detract from the guiding function of statutes, and reflects a desire to return to the plain meaning rule. A Reevaluation of

the Use of Legislative History in Federal Courts (1952, Col. L. Rev. 52: 125, 127), citing Jackson, The Meaning of Statutes: What Congress Says or What the Court Says (1948), A. B. A. J. 34; 535, 538) and other authorities. Congress has an opportunity to assist in bringing order into statutory construction and in rectifying imbalance resulting from unwarranted use of extrinsic aids. The term "legislative history" has become a catch-all for extrinsic evidence of congressional intent.

According to Sutherland (Statutes and Statutory Construction, 3d edition by Horack), where the intention of the legislature is so apparent from the face of a statute that there can be no question as to the meaning, there is no room for construction (secs. 4701-4706). It is axiomatic that statutes should be so construed as to carry out the plain legislative purpose (St. Louis & O'Fallon Railway Co. v. U. S., (1929) 279 U. S. 461, 487). Therefore, where the words of the statute are plain, a court may not add to or alter them to effect a purpose which does not appear on its face or from its legislative history. Matson Navigation Co. v. U. S. (1932, 284 U. S. 352, 356). Of particular application to the problem at hand is Colorado Interstate Gas Co. v. Federal Power Commission (1945, 324 U. S. 581, 604), which holds, among other things, that a declaration of policy may not be used to take an express provision out of a statute. Further, a statute ought not to be expounded by detached words and phrases, but the whole act must be taken together and given a fair interpretation, neither extending nor restricting it beyond the legitimate import of its language and its obvious policy and object. Gayler v. Wilder (1851, 10 How. 477, 495).

Naturally, then, the first, as well as the best, source to ascertain the meaning of any statute is the statute itself-its words, grammar, punctuation, context, title, and the like. Crawford, Statutory Construction (1940, p. 351). If this principle and those noted above are applied to the Reorganization Act of 1949, it is obvious that there is little need for recourse to the legislative background of that act and its predecessors or to other extrinsic aids, for the language is clear and unambiguous, the objectives plainly stated, the reasons clearly set forth, the requirements definitely established, and the limitations precisely drawn.

Years of adjudication of constitutional provisions have established a rule of interpretation which holds that no number of statutes or infractions of the Constitution, however numerous, can be permitted to import a power which does not exist or to furnish a construction which is not warranted. Long acquiescence of Congress and the Executive by which the rights of parties have been determined and adjudged for many years, does not make constitutional that which is unconstitutional. Fairbank v. U. S. (1901, 181 U. S. 283, 307), Field v. Clark (1892, 143 U. S 649, 691), and U. S. v. Boyer (1898, 85 F. 425). This basic proposition, we believe, is applicable to the Reorganization Act of 1919. No previous acquiescence by the Congress in an unwarranted plan precludes a later rejection by the Congress on the ground that the proposal does not meet the requirement of the law. Under the procedures established in title II, as an exercise of the constitutional rule making powers of the Senate and the House, it is possible, of course, to give standing to plans not meeting the plain requirements of the act. This is because once disapproval of a plan has failed,

it thereafter is difficult to attack the reorganization in a court, for the decisions clearly indicate that courts will be reluctant to look behind the law to search for procedural deficiencies in the establishment of the particular plan as law. See U. S. v. Ballin (1892, 144 U. S. 1, 4), Field v. Clark, supra (pp. 669–670, 673).

An instance of an attack in court on a reorganization plan is Isbrandtsen-Moller Co., Inc. v. U. S. (1936, 14 F. S. 407; 1937, 300 U. S. 139). That case involved the exercise of authority granted to the president by title IV of the Legislative Appropriation Act of June 30, 1932, as amended (47 Stat. 413, 1517). By Executive Order 6166, dated June 10, 1933, the President abolished the old Shipping Board and vested its functions in the Departmnt of Commerce. The question of whether or not the Secretary of Commerce could issue certain orders which gave ries to the suit became moot by reason of the passage of the Merchant Marine Act of 1936. However, the Supreme Court took note of the fact that the new act transferred to the United States Maritime Commission all of the functions of the old board "now vested in the Department of Commerce." Further, Congress appears to have recognized the transfer and ratified the action of the President by the Appropriation Acts of April 7, 1934, March 22, 1935, and May 15, 1936 which made appropriations for carrying out the provisions of the Shipping Act. (See 300 U. S. 139, 147, 148. See also Swayne & Hoyt, Ltd. v. U. S. (1936) 18 F. S. 25; (1937) 300 U. S. 297.) These cases suggest that even though authority is exceeded, subsequent action on the part of Congress possibly may cure the defect. Thus, though a plan submitted by the President under the present Reorganization Act does not meet the standards and requirements set forth therein, it is possible for Congress to give standing to the plan by failure to disapprove. In the Isbrandtsen case you will note that Congress recognized and gave standing to the transfer.

Perhaps reference should be made to section 4 (2) which reads:

"SEC 4. Any reorganization plan transmitted by the President under section 3

"(2) may include provisions for the appointment and compensation of the head and one or more other officers of any agency (including an agency resulting from a consolidation or other type of reorganization) if the President finds, and in his message transmitting the plan declares, that by reason of a reorganization made by the plan such provisions are necessary. The head so provided for may be an individual or may be a commission or board with two or more members. In the case of any such appointment the term of office shall not be fixed at more than 4 years, the compensation shall not be at a rate in excess of that found by the President to prevail in respect of comparable officers in the executive branch, and, if the appointment is not under the classified civil service, it shall be by the President, by and with the advice and consent of the Senate, except that, in the case of any officer of the municipal government of the District of Columbia, it may be by the Board of Commissioners or other body or officer of such government designated in the plan;

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In case it is argued that the above reference to the classified civil service authorizes a plan comprised exclusively of a change in the method of appointment, the answer should be that any change in status is conditioned on reasons found in the reorganization plan. Accordingly, if there is no plan for a transfer, consolidation, authorization, or abolition as required in section 3, there is no basis to support the mere change in status. See also section 8 defining the term "reorganization." Further, any attempt to detach and give special meaning to the reference to the civil service would violate the rule stated in Gayler v. Wilder, supra, that a statute should not be expounded by detached words and phrases.

CONCLUSION

On the basis of the foregoing, we have reached the conclusion indicated earlier that the Reorganization Act of 1949 does not authorize plans comprised exclusively of a change in the method of appointment. However, as the act merely established a special procedure for legislatively accomplishing the contemplated and desired reorganizations, plans not clearly within the authorization of the act may achieve standing nevertheless by reason of the failure of the Congress to disapprove. The only appropriate safeguard whereby Congress can insist on compliance with the act is the passage of the disapproval resolutions in the form provided by title II of that act. FRANK B. HORNE.

The CHAIRMAN. The Chair also wishes to place in the record at this time a letter dated May 28, 1952, from Hon. F. J. Lawton, Director of the Bureau of the Budget, addressed to him as chairman of the committee, transmitting a copy of a letter from the Assistant Attorney General to Mr. Lawton, dated May 28, 1952, together with a memorandum opinion prepared by the Department of Justice with reference to the legal aspects of plans 2, 3, and 4. (The matter referred to is as follows:)

Hon. JOHN L. MCCLELLAN,

EXECUTIVE OFFICE OF THE PRESIDENT,

BUREAU OF THE BUDGET, Washington 25, D. C., May 28, 1952.

Chairman, Senate Committee on Government Operations,

Senate Office Building, Washington 25, D. C.

MY DEAR SENATOR MCCLELLAN: I am forwarding herewith four copies of a communication I have received from the Assistant Attorney General, Executive Adjudications Division, in clarification of certain questions relating to reorganization plans Nos. 2, 3, and 4 of 1952.

This material is furnished in accordance with the request expressed May 14 when I testified before the Senate Committee on Goverment Operations relative to these reorganization plans.

Sincerely yours,

F. J. LAWTON, Director.

DEPARTMENT OF JUSTICE,
Washington, May 28, 1952.

Hon. F. J. LAWTON,

Director, Bureau of the Budget,

Washington 25, D. C.

DEAR MR. LAWTON: This will reply to your letter of May 15, 1952, to the Acting Attorney General, concerning certain questions which were raised in the course of your testimony on May 14, 1952, before the Senate Committee on Government Operations, on reorganization plans Nos. 2, 3, and 4 of 1952, relating to postmasters, customs officials, and marshals, respectively. It is noted that the chairman of the committee requested of you that the committee be furnished an expression of the views of the Acting Attorney General with respect to the following:

1. Do the three reorganization plans properly come within the authority of the Reorganization Act of 1949? The comments made at the hearing appeared to suggest that the essential effect of the reorganization plans is to change methods of appointment and that the reorganization plans are not "reorganizations" in the usual or proper sense.

2. Do plans 3 and 4 have the effect of increasing terms of office in contravention of the Reorganization Act of 1949?

3. Will present residence requirements respecting postmasters and marshals prevail in connection with the new offices of postmaster and marshal? May postmasters and marshals, after appointment, be transferred from one area or jurisdiction to another?

You will, of course, recall the letters dated April 10, 1952, by which the Acting Attorney General transmitted reorganization plans Nos. 2, 3, and 4 of 1952 through you to the President. In each instance he certified the proposed plan to be "in accordance with the provisions of the Reorganization Act of 1949." accordingly approved them "as to form and legality."

The enclosed memorandum of comment reflects the study given the questions enumerated in your letter by members of the staff of this Department. I hope that it will prove helpful. It should not be construed as a modification in any respect of the advice given the President in the above-mentioned letters of April 10, 1952.

Sincerely yours,

JOSEPH C. DUGGAN, Assistant Attorney General, Executive Adjudications Division.

MEMORANDUM

In connection with the inquiry directed to him by the chairman of the Senate Committee on Government Operations during hearings held by that committee on May 14, 1952, concerning reorganization plans 2, 3, and 4 of 1952, the Director of the Bureau of the Budget has asked the Acting Attorney General for a clarification with respect to the following:

2. Do plans 3 and 4 have the effect of increasing terms of office in contravention of the Reorganization Act of 1949?

1. First for consideration with reference to question No. 1 are the letters, dated April 10, 1952, by which the Acting Attorney General transmitted plans 2, 3, and 4 of 1952 to the President. As stated in those letters, the Acting Attorney General certified each proposed plan to be "in accordance with the provisions of the Reorganization Act of 1949" and accordingly approved them “as to form and legality."

Without modifying in any respect the afore-mentioned advice to the President, the following is submitted by way of clarification.

Although limited in scope, the three plans in question are plainly reorganization plans within the meaning of the Reorganization Act of 1949. As the President found and declared in his meassage accompanying each plan, the reorganizations in plans Nos. 2, 3 and 4 of 1952 are necessary in order to accomplish one or more of the purposes set forth in section 2 (a) of the Reorganization Act of 1949 and the particular actions involved in each reorganization, such as the abolition of existing offices, the establishment of new offices, the transfer of functions and the provision for effective date of the provisions of the plan are specifically authorized by the provisions of sections 3, 4 and 6 of the Reorganization Act of 1949 and do not fall within any of the limitations of section 5 of the act. It should be noted, moreover, that there is no substantial difference between the action taken by the President in Reorganization Plan No. 1 of 1952, providing for reorganization in the Bureau of Internal Revenue of the Department of the Treasury, and the actions taken in the three plans in question. Plan No. 1 became effective on March 15, 1952.

2. The second question is concerned with the limitations placed upon the powers of the President with respect to reorganizations. Section 5 of the Reorganization Act of 1949 lists six such limitations of which the fifth is as follows: "SEC. 5. (a) No reorganization plan shall provide for, and no reorganization under this act shall have the effect of

"(5) increasing the term of any office beyond that provided by law for such office; or ****

Provision for the reorganization of the offices in the Bureau of Customs and in the Department of Justice under the proposed plans from offices of fixed term into offices for appointment under the classified civil service cannot reasonably be construed to have the effect of "increasing the term of any office" in contravention of section 5 (a) (5).

The offices to be established under these plans are under the classified civil service and are of indefinite duration, that is, for no fixed term. The limitation upon the authority of the President under section 5 (a) (5) of the Reorganization Act should be read as a limitation upon increasing the fixed term of any office and has no relation to the system of appointment under the classified civil service to positions of no fixed term.

3. Distinct questions concerning postmasters and marshals are embodied in question No. 3. The questions and the answer respecting each plan will be treated separately.

Question 1. Will present residence requirements respecting postmasters prevail in the new office of postmaster? May postmasters after appointment be transferred from one area or jurisdiction to another?

Answer. Section 2 of reorganization plan No. 2 of 1952 expressly preserves and makes applicable to the new offices established therein the preappointment residence requirements applicable under present law (39 U. S. C. 31b) to the offices of postmaster at post offices of the first, second, and third class. language of 31b is, in pertinent part:

The

* * No person shall be eligible for appointment under this section unless such person has actually resided within the delivery of the office to which he is appointed, or within the city or town where the same is situated for one year next preceding the date of such appointment, if the appointment is made without competitive examination; or for one year preceding the date fixed for the close of receipt of applications for examination, if the appointment is made after competitive examination: Provided, That residence within the delivery of the post office or within the city or town where the same is situated shall be essential to the examination, appointment, reappointment, or promotion of applicants for postmaster at offices unless the Civil Service Commission finds that peculiar local conditions preclude or render impossible the application of such requirements. In such cases the Commission may examine and certify for appointment, reappointment, or promotion persons who reside in such area adjacent to, or surrounding, the delivery zone of the post office as may be fixed by the Civil Service Commission."

There can be no question, therefore, that in order to be eligible for an office established by plan No. 2, an applicant must comply with the preappointment residence requirements.

The residence during tenure requirement for postmasters provided in 30 United States Code 32 is not expressly preserved in plan No. 2. However, in his message transmitting plan No. 2 to the Congress, the President stated:

"The abolition of offices by Reorganization Plan No. 2 of 1952 will not abolish any rights, privileges, powers, duties, immunities, liabilities, obligations, or other attributes of those offices except as they relate to matters of appointment and tenure inconsistent with that reorganization plan. Under the Reorganization Act of 1949, all of these attributes of office will attach to the new offices of postmaster, either automatically or upon the occurrence of an appropriate delegation of functions to such new offices by the Postmaster General." [Italics supplied.] The application of the residence during tenure requirement is not "inconsistent" with "matters of appointment and tenure" dealt with in the plan and may therefore be said to be carried forward. (See also sec. 9 (a) of the Reorganization Act of 1949.)

The question concerning transfer of postmasters does not constitute an independent question. A transfer would not differ in substance from a new appointment inasmuch as the same preresidence requirements would have to be fulfilled before an applicant could fill a postmastership at another city.

Question 2. Will present residence requirements respecting marshals prevail in connection with the new office of marshal? May marshals after appointment be transferred from one area or jurisdiction to another?

Answer. The President's message transmitting Plan No. 4 to the Congress contained a statement similar to that contained in Plan No. 2:

"The abolition of offices by Reorganization Plan No. 4 of 1952 will not abolish any rights, privileges, powers, duties, immunities, liabilities, obligations, or other attributes of those offices except as they relate to matters of appointment, tenure, and compensation inconsistent with that reorganization plan. Under he Reorganization Act of 1949 all of these attributes of office will attach to the new offices of United States marshal, either automatically or upon the occurrence of an appropriate delegation of functions to such new offices by the Attorney General."

There is no specific provision in Plan No. 4 which preserves the residence during tenure of office requirement for United States marshals (see 8 U. S. C. 541), but the provision is contained in applicable law and does not relate to "matters of appointment [and] tenure-inconsistent" with the provisions of the plan and may therefore be said to be carried forward.1 (See also sec. 9 (a) of the Reorganization Act of 1949.)

With reference to the transfer of marshals under the plan, there is provision under existing law for appointment by the President of a United States marshal "for each judicial district" (28 U. S. C. 541). A marshal's appointment designates him as the marshal of a particular judicial district, e. g., "United States Marshal

1 The same may be said of the requirement for residence preceding appointment as marshal for the district of Hawaii. 28 U. S. C. 541 (d).

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Reorganization Plans Nos. 2, 3, and 4, 1952: Hearings... 82-2