ferred shall be eligible to appointment to positions in any department held by them at date of transfer to the Census Office without examination:

And provided further, That during the decennial census period and no longer the Director of the Census may fill vacancies in the permanent force of the Census Office by the promotion or transfer of clerks or other employees employed on the temporary force authorized by section 6 of this act:

And provided further, That at the expiration of the decennial census period the term of service of all employees so transferred and of all other temporary officers and employees appointed under the provisions of this act shall terminate, and such officers and employees shall not be eligible to appointment or transfer into the classified service of the Government by virtue of their examination or appointment under this

act.

Various questions as to the interpretation to be given by the Commission to the above provisions were submitted to the Attorney-General, who held in substance as follows:

Residence and domicile.-The residence and domicile restrictions contained in the first proviso of section 7 of the census act approved July 2, 1909, apply only to the examinations for the apportioned service of the Government at Washington.

The provision in that section with regard to applicants being "actually domiciled" in the State or Territory where the examination is taken means that he must not only show that he resides in the State or Territory where he applies for examination, but that for at least one year previous to his examination he has been actually domiciled there; that is, he shall, for that period, have had his permanent home within such State or Territory, a home adopted at least one year previous to his examination, with the intention of making it his permanent abode, which intention shall not have been departed from during the period.

It is impossible to determine in advance the conclusions to be drawn by the application of these rules to all varying facts that may be presented in different cases arising under these statutes. As was said by Attorney-General Miller, "A general rule applicable to all cases can not be formulated." Again, as stated by AttorneyGeneral Miller in the opinion cited by Mr. Olney (20 Op., 649), the question of domicile as well as of residence involves a mixed question of law and fact, to be determined in each case upon its own peculiar facts.

Tuberculosis and members of family.-Every proviso to section 7 has reference to the appointment of clerks and other employees in the Census Office, but the first proviso alone by its terms is general legislation embracing all examinations for the apportioned service of the Government at Washington.

The second and third provisos to section 7, regarding persons afflicted with tuberculosis, and the appointment of more than one person from the same family, apply only to clerks and employees of the Census Office.

Military preference.—Section 1754, Revised Statutes, and section 7 of the census act, do not exempt soldiers or sailors honorably discharged from the military or naval service for disabilities resulting from wounds or sickness incurred in the line of duty from the examination for the census force provided by that act.—(Opinions of August 18, 1909, and November 15, 1909.)

EXTRACT FROM THE OPINION OF JUDGE BRADFORD, RENDERED ORALLY IN THE CASE OF UNITED STATES v. GLICK, UNITED STATES DISTRICT COURT OF DELAWARE.

CONSTITUTIONALITY OF SECTION 12 OF THE CIVIL-SERVICE ACT.

I have been listening to these arguments very attentively from beginning to end, and I do not think that this act is unconstitutional. I have a very strong conviction in my mind that it is absolutely and perfectly constitutional; that section 12, from beginning to end, is constitutional.

It seems to me that there has been a fallacy which has been, really, at the basis of the argument made by the learned counsel for the defense, and that fallacy is that the authority of Congress to legislate is inextricably attached to or connected with the provision of the Constitution contained in section 8 of article 1, relating to exclusive jurisdiction.

From the beginning of this argument to the present time I have not been impressed with that idea. During the opening argument of the counsel for the defendant, several times I suggested the question as to whether the question might not involve concurrent jurisdiction in contradistinction to exclusive jurisdiction. It seems to me that the provision of the Constitution relating to exclusive jurisdiction has absolutely nothing to do with this motion, or with the sufficiency of the indictment, or its constitutionality. It is true that the place is, in a certain sense, made part and parcel of the offense. The counsel for the defendant says that the Government is tied down to place. That is, in a certain sense, true, and in a certain other sense incorrect, in the judgment of the court. The offense which is denounced in section 12 must, of course, occur in a place, and the only place that is mentioned, aside from the forts, and so on—which I will not mention or deal with now-is a room or building occupied in the discharge of the official duties by any officer or employee of the United States mentioned in this act. Now, then, there is nothing in that section and there could not have been. It would have been impracticable to undertake to say that the official, in the discharge of official duties, or any officer or employee of the United States, in any room or building situated within certain territorial limits. That was not the idea of the section at all. The idea of the section was that while, of course, the offense must be committed somewhere, it could be committed wherever that room or building was situated. It is not like the case of a fort, or of the District of Columbia, or the other territorial divisions over which exclusive jurisdiction is retained by the United States, and where, if an offense be complete, it is complete in and by itself, and the United States courts, in contradistinction to the State courts, will take cognizance of it. That is not this case. This is a case in which the room or building enters into the very definition of the offense, and the place is essential only in that sense. Wherever that building may be situated, if the solicitation occurred, the offense is completed. Now, that being so, I have utterly failed to perceive how the provision of the Constitution relative to exclusive jurisdiction has any application to the case. It seems to me to come down to this question, as to whether the United States, under the Constitution, with this grant of express powers, and with the express constitutional authorization to pass legislation to carry into effect its express powers and with whatever powers resulting from necessary implication, whether it has a right to prevent a place, occupied by it for public purposes, occupied by its officers in the discharge of their official duties, being made the theater of objectionable practices. I can not conceive that anybody could question the right of Congress-I can conceive, too, because no less eminent counsel than Mr. Ward has conceived it-but if it hadn't been for Mr. Ward's argument, I couldn't conceive that anyone would question for a moment the right of Congress to provide a penalty for persons who behaved in a disorderly manner in this building, to provide a penalty against the commission of any act which, within the reasonable contemplation of Congress, is calculated either to affect injuriously good morals or the efficiency of the service or public policy. It seems to me that to deny the Congress of the United States the right to secure order and decency, and to secure the absence of obstruction, whether physical or otherwise, to the efficient conduct of the business, it involves a proposition that to my mind I can not accept. It seems to me that this power must reside in the Government of the United States.

Section 11 deals with a solicitation by one officeholder, or employee, from another officer or employee. That section was under consideration in the case of ex parte Curtis, and in the course of the opinion-I mention this because it has a bearing upon

section 12, in view of the admitted facts that the solicitation under section 12 may occur, or may not occur, between officials, on the one hand, between officials solely, or between private individuals. In this case of Curtis.the court says:

If there were no other reasons for legislation of this character than such as relate to the protection of those in the public service against unjust exaction, its constitutionality would, in our opinion, be clear; but there are others to our minds equally good. If persons in public employ may be called on by those in authority to contribute from their personal income to the expenses of a political campaign, and a refusal may mean the putting of good men out of the service and liberal payment made the ground for keeping poor ones in; so if a part of the compensation received for public services must be contributed for political purposes, it is easy to see that an increased compensation may be required to provide the means to make the contribution, and that in this way the Government itself may be made to furnish, indirectly, the money to defray the expenses of keeping the political party in power that happens to have for the time being the control of the public treasury.

That is what the Supreme Court said in the Curtis case. I can go further than that. I do say that that sort of practice of solicitation, the making of assessments upon officeholders, or by political agents, is, in my judgment, opposed to the very underlying principle of the republican form of government. If there is any one thing that is, in my judgment, fundamental, it is the right of every citizen to support whatever party he deems entitled to his suffrage without any constraint upon his will, without any undue influence. It very frequently happens-has happened in times past, in this country, and is liable to happen hereafter in this country—that the very best citizens change their political sentiment on account of some great issue which may be before the country. A man who has supported the Republican party, for instance, may, on account of some radical step, feel disposed, at least for the time being, to support the Democratic party; and a man who has supported the Democratic party in times past may, on account of some great issue, feel it to be his duty to support the Republican party. Now, is he to be committed, by having a political assessment laid upon him, to a continuance of the support of the party which he no longer deems worthy of his adherence? It applies to all parties. It only goes to show that this practice is something which is antagonistic to the very underlying principles upon which a free popular self-government rests.

This argument has been so elaborate on both sides that I deem it my duty to express somewhat in a very informal way, but somewhat in extenso, the views which I have formed, and which I very much regret I have not had the opportunity of reducing to writing.

Section 12 provides that no person shall, in a room or building occupied in the discharge of federal duties by an officer or employee of the United States, mentioned in this act, or in any navy-yard, fort, or arsenal, solicit in any manner whatever or receive any contribution of money or other thing of value for any political purpose whatever. If Congress had undertaken to say that no one person in this country should solicit a political contribution from any other person in this country, I have very little doubt but that we would all agree, even the district attorney, that such an act as that would be absolutely beyond the power of Congress. It would be an invasion of rights which, according to my judgment, were not delegated to Congress, were not delegated to the National Government. It would be a very gross invasion of the state rights of private individuals. But that is not this case. Undoubtedly the saving clause, so far as the constitutionality of section 12 is concerned, is the requirement that the act shall be performed in a room or office or building occupied in the discharge of official duties by any officer or employee of the United States. That section applies just as well to officeholders as it does to private individuals, and it applies just as well to private individuals as to officeholders. The United States, in my judgment, has a right, as I said before, to provide that such a room or building shall not be made the theater or scene of objectionable practices on the part of officeholders, or on the part of private individuals. It is no inva29783-10-11

sion, in the judgment of the court, of any substantial right of citizens. If they do not wish to incur the penalties of this act all they have to do is to step out of the front door, and, as was suggested before, the outside is very much larger than the inside; but if they see fit, in the teeth of this statute, to come into this place, I mean the room and buildings so occupied, which is entirely unnecessary, which they need not do, then they do it at their peril.

Something was said during the course of the argument upon the application of this section to persons who might have their negotiations out of the hearing of officials within the building. That may be. It would be a very difficult matter to distinguish in point of fact, in a great many cases, as to whether people were outside the hearing of officers, or within their hearing. Possibly it might be very difficult for a jury to put theriselves in the position of a man with respect to the clearness of hearing, his ability to overhear what was said. Any undertaking on the part of Congress to restrict the solicitation to persons who solicit only of or from officials, or in the hearing of officials, would be a very lame sort of legislation. Congress, for the purpose of securing the building and room from being made, as I say, the theater of these operations, which are certainly against sound policy, as applied to officeholders, has declared broadly that this solicitation is not to be permitted within that building, and if persons propose to solicit, they can step out of the building. I see neither unconstitutionality in this statute, nor hardship, for the reasons given, and for many others, to which I do not allude.

The motion on the part of the defendant must be denied.

LABORERS.

THE CLASSIFICATION OF LABORERS.

The system of selecting for employment those persons who meet most successfully certain uniform tests was at first applied to a small part of the executive civil service in 1883.

Extensions of the classification brought an ever-increasing number of positions under the merit system and the pressure for appointments for political and personal reasons fell with ever-increasing weight on the diminishing number of unclassified positions.

It was found in 1896 that the number of positions originally classified by the civilservice act in 1883 had slightly decreased, and that there had been a decrease in the appropriations for these positions; but that unclassified positions had increased about 37 per cent in number and 43 per cent in salaries. The increase in the classified service was due to inclusions. While the service as a whole grew rapidly the newly created positions generally fell outside of the classified service.

Section 7 of the civil-service act provides that no person merely employed as a laborer shall be required to be classified. Under this provision persons were appointed and designated as laborers who were in fact laborers only in name. To prevent such appointments the President on June 10, 1896, provided that such positions should be included within the classified service and that no laborer appointed without examination should be assigned to work of the grade performed by classified employees. The number of positions thus classified was 523.

There was still no restriction on the appointment of laborers. It was merely provided that they should not be assigned to classified work. Under political and personal pressure the appointment of laborers without examination continued; and their presence in the departments in numbers entirely disproportioned to the amount of laboring work forced their assignments in contravention of the order.

On July 3, 1902, an executive order was promulgated requiring the appointment of unclassified laborers in the order of their fitness for the performance of unskilled manual labor. Since that time laborers have been appointed to meet the needs of the service rather than the desires of the individual and his friends. Having stopped the practice of improper appointments the problem remained of dealing with these laborers who, originally appointed without examination, had been for years performing classified work. The interests of the service would not permit their summary removal, but their continued employment was in contravention of the rules. Accordingly the President on January 12, 1905, March 30, 1905, and February 24, 1906, promulgated orders permitting such laborers to be classified. The first two orders applied to the departments in Washington and the last to the service outside. The following table shows the number of laborers classified by these orders:

163