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to the new State. Had this been done his name would not have been certified when it was and he would not have been appointed, but a resident of the State from which he was examined would have been. As a consequence of his failure to give timely notice of his removal, the one State was charged with an appointment which it did not receive and failed to receive an appointment it was entitled to; and the other received an appointment with which it was not charged and to which it was not then, nor has it been since, entitled under the law and rules.
While it is the undoubted duty of the executive branch to give effect to the l'equirement of Congress for an apportionment, it is a very different thing to say that an appointment made in disregard of this rule of apportionment, through a mere inadvertence, is to fail entirely and be treated as a nullity.
Congress did not intend that in such a case as this, where everything was done in good faith, an inadvertent disregard of the rule of apportionment in making an appointment should annul that appointment. The statute is directory only in the above particular, consequently the appointment of H was not invalid. (Opinion of December 10, 1891.)
23. Classification of employés of the Weather Bureau.—The employés of the Weather Bureau of the Department of Agriculture, who are on duty outside and away from the city of Washington, are not members of the classified civil service. (Opinion of March 12, 1892.)
OPINIONS OF ATTORNEY-GENERAL RENDERED SINCE LAST REPORT.
DEPARTMENT OF JUSTICE,
Washington D. C., May 5, 1893. The POSTMASTER-GENERAL:
SIR: I am in receipt of your communication of April 26, asking my official opivion upon the construction of Postal Rule No. 1, as amended by the President's order of January 5, 1893.
The rule is promulgated under authority of the civil-service act of January 16, 1883, (22 Stat., 403). Section 6 of that act, after providing that the Postmaster-General within sixty days after its passage should separately arrange in classes the employés at certain described post-offices, further provided, that thereafter, “from time to time, on the direction of the President, it shall be the duty of the PostmasterGeneral to arrange in like classes the clerks and persons so employed in the postal service in connection with any other post-office.” It also provides for revising the classification of any post-office under like direction. Under this section the President gave the direction contained in the amended rule above mentioned, which reads as follows:
The classification of the postal service made by the Postmaster-General under section 6 of the act of January 16, 1883, is hereby extended to all free-delivery postoffices; and hereafter, whenever any post-office becomes a free-delivery office the said classification or any then existing classification made by the Postmaster-General under said section and act shall apply thereto; and the Civil Service Commission shall provide examinations to test the fitness of persons to fill vacancies in all freedelivery post-offices, and these rules shall be in force therein ; but this shall not include any post-office made an experimental free-delivery office under the anthority contained in the appropriation act of March 3, 1891. Every revision of the classification of any post-office under section 6 of the act of January 16, 1883, and every inclusion of a post-office within the classified postal service shall be reported to the President.
The "rules” referred to as to “be in force therein" are those contained in the general code of “Revised Civil Service Rules” of which Postal Rule No. 1 forms a part. The first clause of this amended rule, read in connection with the statute, is the equivalent of a direction to the Postmaster-General to arrange the clerks in each free delivery post-office in classes, according to the rules of classification observed in the post-offices previously brought under the civil-service act.
The question submitted for my opinion whether the amended rule took effect and became operative on the date of its promulgation at all of the free-delivery
offices, or whether it was in abeyance at each such office until the classification of the office had become complete and an eligible register had been established through examinations by the Civil Service Commission.
There can be no doubt that the amended rule became operative upon the date of its promulgation, in so far as it called for classification by the Postmaster-General, and for the provision of examinations by the Civil Service Commission; nor that it required the classification to be made and the examinations provided, as soon as practicable, in view of the magnitude of the work and the other calls upon the working force of the Post-Office Department and the Commission.
The practical questions, therefore, I understand to be whether the “Revised Civil Service Rules” as a body are in force at all of the free-delivery post-offices pending the completion of the work aforesaid, a period, as I am informed, which will amount necessarily to several months in the case of the last offices classified.
Examination of the rules of the statute shows that appointments thereunder can not have been intended to be made until the first examinations had been provided. The civil-service act (sec. 7) enacts that no person not specially exempt “shall beemployed to enter or be promoted in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examination.” It also directs (sec. 2) that the examinations shall be open and competitive, with such “necessary exceptions” as “shall be set forth in connection with such rules.” General Rule III provides that “No person shall be appointed or employed to enter the civil service classified,” etc., “until he shall have passed an examination,” unless specially exempted by the civil-service act or by an exception "set forth in connection with the rules regulating admission to the branch of the service he seeks to enter.” There is no such exception in the case of ordinary post office clerks or letter-carriers. Nor, in the case of these officials, is there any provision for noncompetitive examinations except in case of failure to obtain eligibles by competitive examination “after due notice,” in case of certain promotions and transfers, and “when the exigencies of the service require such examination for temporary appointment for not exceeding thirty days.” (General Rule III; Postal Rule II.)
In my judgment, the Revised Civil Service Rules, as amended January 5, 1893, are, with reference to the time when they become operative in free-delivery post-offices, divisable into two portions, each dealing with a distinct subject-matter. So far as they govern the creation of certain machinery they are effective at once; so far as through the working of that machinery they qualify the exercise of the appointment power, they are necessarily effective only when the machinery is created and is in working order, that is, when the Postmaster-General has completed the required classification and the Civil Service Commission has provided the required examination.
But the removal power is only a part of the appointment power—is its mere incident, rather (Blake vs. United States, 103 U. S., 227), and as such part and incident and not otherwise is the subject of the amended rules. It follows that both powers remain intact and unaffected until the time above specified, that is, until the Postmaster-General and the Civil Service Commission have, respectively, completed the work required of them. Any other conclusion is legally impossible in the absence of any expressed provision in the order of January 5, 1893, distinguishing between the appointment and the removal power in respect to the time when the order shall apply to them respectively.
The past practical construction of the act and of the rules confirms the view that as to appointments at least no restriction is imposed by an extension of the rules to any new office, until examinations have been provided. Except in its application to free-delivery post-offices, the language of the clause now under consideration is not new. It has come down with phraseology almost unchanged from January 1885, in connection with previous extensions of the act. (Second Annual Report of the
Civil Service Commission, pp. 63, 69; Fourth Aanual Report, p. 149; Eighth Annual Report, p. 39.) The language was therefore familiar to the Civil Service Commission when the new rule was promulgated on January 5, 1893. The slight change in wording from the prior rule does not affect its construction in the present connection. The Commission on January 9, issued a circular stating that “as soon as eligible registers have been established at any office the rules will go into effect at that office”; and as to appointments, this construction has continued.
It is not, however, necessary in my opinion that eligible registers should always be established before the rules go into effect. It may be that the first competitive examinations noticed produce no eligibles. Neither the language of the rule nor its intent require that this accident should postpone the application of the civil-service act, as noncompetitive examinations may at once be demanded.
The question submitted is, therefore, answered as follows: In so far as Postal Rule I required the Pustmaster-General to classify the employés at the free-delivery postoffices and required the Civil Service Commission to provide examinations, it went into effect on the date of its promulgation, and required the work to be done in accordance with the revised civil-service rules; otherwise, the revised civil-service rules come into force at each free-delivery post-office, in my opinion, as soon as its classification shall have been completed by the Postmaster-General and the first examination shall have been provided by the Civil Service Commission, whether or not such examination shall result in an eligible register. Very respectfully,
Attorney-General. Right of the Commission to make certain requirements as to legal residence.
DEPARTMENT OF JUSTICE,
Washington, D. C., August 29, 1893. The PRESIDENT:
Sir: I have the honor to acknowledge your communication of August 19, inclosing a request submitted to you by the Civil Service Commission, and asking me to furnish an opinion thereon.
The civil-service law, January 16, 1883, chap. 27, provides substantially that the rules promulgated by the President for carrying it into effect shall have the force of law. It provides, further, that appointments to the departmental service “ shall be apportioned among the States and Territories and the District of Columbia npon the basis of population as ascertained at the last preceding census. Every application for an examination shall contain, among other things, a statement under oath setting forth his or her actual bona fide residence at the time of making the application, as well as how long he or she has been a resident of such place."
General Rule III, promulgated by the President in accordance with this act, provides as follows:
“Every applicant for examination for the classified departmental service and the classified Railway Mail Service must support the statements of his application paper by certificates of persons acquainted with him, residents of the State, Territory, or district in which he claims bona fide residence; and the Commission shall prescribe the form and number of such certificates."
General Rule VIII provides as follows:
The Commission shall have authority to prescribe regulations under and in accordance with these general rules and the rules relating specially to each of the several branches of the classified service.
By the legislative appropriation act of July 11, 1890, Congress further provided :
Tbat hereafter every application for examination before the Civil Service Commission for appointment in the departmental service in the District of Columbia, shall be accompanied by a certificate of an officer, with his official seal attached, of the county and State of which the applicant claims to be a citizen, that such applicant
was at the time of making such application an actual bona fido resident of said county, and had been such resident for a period of not less than six months next preceding; but this provision shall not apply to persons who may be in the service and seek promotion or appointment in any other branches of the Governinent.
With intent to effectuate the intent of this law, the Civil Service Commission, on March 7, 1893, made the following order:
That on and after the first day of April next, no application shall be accepted for an examination for the departmental service where the appointment would be charged to the apportionment, unless it shall be shown to the satisfaction of the Commission that the applicant is at the time and has been for the six months next preceding actually living and residing and having his or her place of abode in the State in which residence is claimed, or that he or she is employed in the public service of said State or of the United States, or that the applicant pays poll tax or is a voter in said State, or is the wife or minor child of a person who is then in the public service of the State or of the United States as aforesaid, or the wife or minor child of a person who is such voter or pays such poll tax.
Further regulations were then also made as to the form of proof in the four excepted cases.
The question presented for my opinion is, whether the order of March 7, 1893, is a regulation within the power of the Commission to make. This depends upon the construction given to the words “actually living and residing and having his or her place of abode.” If such construction does not involve narrowing the statutory requirement of “actual bona fide residence,” there is no serious question for my consideration. If, however, the words are construed to require continuous physical presence of the applicant in the county of his residence for six months next before his application, then the regulation is in the nature of a statute of frauds and demands careful consideration.
Section 2 of the civil-service law provides for “open competitive examinations." I think that this phrase implies the privilege of competition in every citizen not specially excepted by law. If this view be correct, then if an applicant can show “actual bona fide residence" at the time of applying for the period required, and can obtain the required certificates to that fact, he is entitled to demand an examination. The President and Commissioners can make all reasonable regulations as to the nature of the testimony required. If a question of fact is presented by the papers, the decision of the Commission is conclusive; but I do not think that the Commission can narrow the definition of the statutory phrase.
It would not be proper for me to attempt here a definition of the words “actual bona fide residence.” As stated by Attorney-General Miller in his opinion rendered to your predecessor on April 1, 1891, it involves “a mixed question of law and fact, to be determined in each instance upon its own peculiar facts. A general rule appli. cable to all cases can not be formulated.” To attempt such a formulation to cover cases that may arise in the future is beyond the sphere of this Department. (19 Op., 414.) Nor would it be proper for me to attempt the construction of the regulation. That is a matter entirely within the province of the Civil Service Commission. (18 Op., 321.)
My answer to the question submitted must therefore simply be that, if the words "living and residing and having his or her place of abode,” in the order of March 7, 1893, are construed as equivalent to the words “bona fide residing,” the order is a lawful regulation; but that, if they are given auy ore restrictive construction, the order is to that extent unauthorized. Very respectfully,
DE PARTMENT OF JUSTICE,
Washington, D. C., March 31, 1893. The PRESIDENT.
Sir: I have your communication of the 22d instant, made at the instance and for the use of the Civil Service Commission, requesting an opinion upon this question:
Can a court require, on subpæna, the production of any application or examination papers or other records of the boards of civil service examiners ?
I assume that what is desired is a statement of rules to be acted upon in the prac. tical conduct of affairs rather than a discussion of the principles and precedents upon which such rules are founded, and, in that view, have the honor to submit the following conclusions :
1. The general power of appointment to office being in the President qualified only by the right of Congress to vest the appointment of inferior officers in him, in the courts of law, or in the heads of Departments, the Civil Service Commission is to be regarded as an advisory board subordinate to the President, reporting to him, and clothed with the functions of aiding the President or any head of Department in the exercise of the appointing power.
2. Tho boards of civil service examiners are selected by the Civil Service Commission, and, though subordinate to the Commission, may properly be regarded as officials of the respective Departments in connection with which they act.
3. The application and examination papers or other records of the civil service examiners are therefore the official records or papers of the President or of the head of a Department.
4. Being records and papers of the character described, their production can not be compelled by the courts whenever the general public interests must be deemed paramount to the interests of private suitors.
5. When such general public interest forbids the production of an official record or paper in the courts and for the purposes of the administration of justice is a question not for the judge presiding at the trial in aid of which the record or paper is sought, but for the President or head of Department having the legal custody of such record or paper.
And such question may be determined either as and when arising in each particular case and upon its own peculiar facts and merits, or in advance, by general rules applicable to all records anil papers or by special rules applicable to special classes of records or papers. Very respectfully,
9. HISTORY OF LEGISLATION IN AID OF CIVIL SERVICE REFORM.
The following letter of Hon. Dorman B. Eaton, Chairman of the Civil Service Commission under President Grant, and Civil Service Commissioner from the organization of the present Commission in 1883 to 1885, was written at the request of the Commission to answer numerous inquiries on the subject:
2 EAST TWENTY-NINTH STREET,
New York City, January 20, 1894. JOHN T. DOYLE, Esq.,
Secretary Civil Service Commission. Your letter of the fourth inst. was duly received, but illness has not allowed me to make a more seasonable response.
On behalf of the Commission your letter requests information on various points concerning legislation by Congress in aid of civil service reform, and especially concerning the creation of a Civil Service Commission.
(1) The first legislation on the subject is contained in acts of Congress passed in 1853 and 1855, since embodied in the 164th section of the U. S. Revised Statutes. It provided for very inadequate examinations for entering certain parts of the civil service, but not for any commission.