terms of the act. All these tests ignore the fact that the "heads" referred to must be the heads of "any principal department," not the head of a division or a department under the supervision of a subordinate. The "principal" departments are limited in number, being either six departments, or seven, if the department of finance is included, and each of such departments, as has been already stated, has only one head. If the construction contended for by counsel is correct, then, when section 10 authorizes the "head of the department" to notify the commission of a vacancy, which one of such heads is to give such notice? And why is not the direction that "the heads of the department" should give the notice, instead of the direction that "the head" thereof should give it? The construction thus contended for would prevent the fulfillment of the object contemplated by the act itself. If it be once held that there can be no other "heads of any principal department" than those existing in the ordinance at the time the act was passed, then new "heads" may be from time to time created by the common council, or the appointing officers; and every foreman who has a squad of men at work under him will be considered the head of a department. The object of the law is to provide for appointment to office upon the basis of merit and fitness, as ascertained by competitive examinations which are open and free to all. But if the doctrine is to prevail that new heads of any principal department may be created whenever the exigencies of politics or the demands of partisan service require it, appointments upon the basis of merit and fitness will soon cease to be made. In addition to this, the act contemplates that promotions shall be made from one grade of the civil service to another upon the basis of ascertained merit and seniority in service and examination. If, however, every officer who has a number of subordinates under him is to be regarded as the head of a principal department, there can be no opportunity for promotion. If all are heads and all thus occupy the highest grades, there will be no lower grades from which subordinates can rise by promotion. Thus, the intention of the legislature in passing the act to make both original appointments and subsequent promotions depend upon merit, and upon merit as ascertained by examinations, will be defeated. It is well settled that courts will construe an act of the legislature so as to give effect to the plain intention of the body, as embodied in the act. (Soby r. The People, 134 Ill., 66.) In so far as the administration of the civil-service act is dependent upon the action of the judicial department, "it is entitled to, and doubtless will receive, a fair and liberal construction, not only according to its letter, but its true spirit and the general purpose of its enactment." (People v. Roberts, 148 N. Y., 360.) * Our conclusion upon this branch of the case is, that the assistant superintendent of police, inspectors of police, and captains of police are not excepted from the operation of the civil-service law by the provisions of section 11 or by any other provision in the act. The same is true as to all positions in the other principal departments of the city government herein mentioned, which are of a lower grade than the chiefs or heads of those departments or which are subordinate to such chiefs or heads. This statement, however, is subject to this qualification, namely, that wherever, at the time the civil-service act was passed, an office or place of appointment was one the appointment of which was to be made by the mayor subject to confirmation by the city council, it is within the exception named in section 11 and is excluded from the classified service. (b) CLASSIFICATION OF OFFICES AND POSITIONS. PEOPLE EX REL v. KRAUS. PETITION FOR MANDAMUS. SUPREME COURT OF ILLI [This opinion will be found in full in the Third Report of the Chicago Civil Service Commission, p. 195.] The original commission adopted rules and made a classification and indicated certain offices and positions as being within the exceptions named in section 11 of the act. The new commissioners, appointed in 1897, took the ground that the exceptions made by their predecessors should be increased and enlarged, and that there should be a different classification in certain respects from that already adopted. The writ of mandamus will lie to compel the civil service commissioners to make a classification which may be judicially determined to be correct. In Chittenden r. Wurster (152 N. Y., 345), which was a case arising under the civil-service act of New York, where the classification was made by the mayor, it was held that if the mayor of a city refused to do his duty in making classification of the civil-service positions, or if he did it improperly, he might be compelled by mandamus to do it in accordance with the requirements of the statute. II. DECISIONS OF ATTORNEYS-GENERAL. 1. Restriction of choice in appointment.-The power of appointment conferred by the Constitution is a substantial and not merely a nominal function, and the judgment and will of the constitutional depositary of that power should alone be exercised or have legal operation in filling offices created by law. (Opinion of Aug. 31, 1871; 13 Op., 516.) The right of Congress to prescribe qualifications for office is limited by the neces sity of leaving scope for the judgment and will of the person or body in whom the Constitution vests the power of appointment. (Ibid.) Congress may, at its pleasure, distribute the appointment of inferior officers between the President, courts of law, and heads of Departments, or confide the same exclusively to one or more of these depositaries; but it can not constitutionally vest such appointment elsewhere, directly or indirectly. (Ibid.) Accordingly, an act requiring the President, the courts, and heads of departments to appoint to office the persons designated by an examining board as the fittest would be at variance with the Constitution, inasmuch as it would virtually place the power of appointment in that board. (Ibid.) But though the result of an examination before such a board can not be made legally conclusive upon the appointing power, against its own judgment and will, yet it may be resorted to in order to inform the conscience of that power. (Ibid.) And notwithstanding that the appointing power alone can designate an individual for an office, still, either Congress, by direct legislation, or the President, by authority derived from Congress, can prescribe qualifications and require that the designation shall be out of a class of persons ascertained by proper tests to have those qualifications. (Ibid.)* 2. Preference under section 1754, Revised Statutes.-The joint resolution of March 3, 1865 (sec. 1754, R. S.), considered in connection with the act of March 3, 1871, chapter 114, is construed to mean that honorably discharged soldiers and sailors are not exempt from liability to examination for admission into the civil service, but that they are entitled to a preference for appointment as against other persons of equal qualifications for the place. (Opinion of Aug. 13, 1881, Vol. XVII, p. 194.) 3. By section 1754, Revised Statutes, it is made the duty of those making appointments to civil offices to give a preference, other things being equal, to the class of persons named in that section; but the matter of capacity and personal fitness for the place is for the determination of the appointing power. (Opinion of May 24, 1889, Vol. XIX, p. 318.) 4. Reinstatement-Contract surgeons.-A person who served as a contract surgeon in the late war of the rebellion, with troops in the field and in hospitals, *The Attorney-General decided August 31, 1871, that both the theory of the Constitution and its recognized interpretation allowed the direct exercise of choice by the appointing power to be limited to a few of the worthier applicants, the less worthy having been first ascertained and eliminated by a just method authorized by law and fairly exercised under its sanctions. The same legal opinion has also been given in England, where the same question arose.-Report of the Civil Service Commission, April 15, 1874; Ex. Doc. No. 221, 43d Cong., 1st sess. and by completing his contract was honorably discharged from the service, is within the proviso to Departmental Rule X (now Rule IX) of the Civil Service Rules and Regulations, and entitled to the benefits thereby conferred. (Opinion of Apr. 8, 1890, Vol. XIX, p. 533.) 66 5. Reinstatement-General-service clerks.-H. served in the war of the rebellion in a New York regiment from May 12, 1861, to May 13, 1863, when he was honorably discharged. On the latter date he enlisted in the "general service" of the Army for clerical duty at headquarters, and was transferred to the AdjutantGeneral's Office April 1, 1864, in which he served on clerical duty until May 13, 1868, when he was discharged through no delinquency or misconduct on his part. Application being now made by him for reinstatement under amended Departmental Rule X (now Rule IX) of the Civil Service Rules, the Secretary of War requests that he be certified by the Civil Service Commission for reinstatement as a clerk in the War Department under said rule: Held, That H., during the period of his enlistment in the general service" for clerical duty, as above, was not in the classified departmental service, and that (he not having been separated from the latter service) his case does not come within the provisions of said Rule X (now Rule IX), and therefore that he can not be certified thereunder. (Opinion of May 9, 1890, Vol. XIX, p. 552.) 6. Quartermaster's volunteers.-Where one served in the war of the rebellion in the military organization known as "Quartermaster's Volunteers," or "Quartermaster's Brigade," and was honorably discharged from the service: Held, That he is entitled to the benefit of the proviso in Departmental Rule X (now Rule IX) of the civil-service rules, as one who "served in the military service of the United States in the late war of the rebellion, and was honorably discharged therefrom," within the meaning of that rule. (Opinion of Nov. 19, 1889, Vol. XIX, p. 434.) 7. Retired army officers.-A retired officer of the Army does not vacate his commission by accepting a civil office, unless it be an office in the diplomatic or consular service, in which latter case he is to be regarded as having resigned his place in the Army. From the general law applicable to such case (contained in section 1223, Revised Statutes), a certain class of retired officers described in the act of Mar. 3, 1875, chapter 178, are excepted. He is not precluded from holding a civil office which he may lawfully hold under and by virtue of an appointment to such office, and is entitled to draw his pay as a retired officer and also the salary provided for the civil office during the period of his incumbency of the latter office. (Opinion of June 11, 1867, Vol. XV, p. 306. See sec. 2, Legislative, Executive and Judicial appropriation act of July 31, 1894.) 8. Family-Eligibility for examination.-Whether there are already two or more members of a family in the public service, etc., as provided in section 9 of the civil-service act of January 16, 1883, chapter 27, is not a question to be considered by the Civil Service Commission, but by the appointing power. (Opinion of June 12, 1883, Vol. XVII, p. 554.) 9. Family-Eligibility for appointment.—Where a father and daughter held each an office in the classified service in one of the Departments, and another daughter, having passed the required examination, was proposed for appointment in another Department: Held, That by force of section 9 of the act of January 16, 1883, chapter 27, the last-mentioned daughter, so long as the above state of facts exists, is ineligible for appointment to any office or place in the classified service. (Opinion of Dec. 9, 1884, Vol. XVIII, p. 83.) 10. Section 164, Revised Statutes, repealed.-The act of January 16, 1883, chapter 27, to regulate and improve the civil service of the United States, repeals by implication section 164, Revised Statutes. (Opinion of Aug. 1, 1885, Vol. XVIII, p. 245.) 11. Chief examiner.-The office of chief examiner in the Civil Service Commission, created by the act of January 16, 1883, chapter 27, is to be filled by appointment by the President, with the advice and consent of the Senate. (Opinion of May 26, 1886, Vol. XVIII, p. 409.) 12. Doubt suggested whether the provision in section 3 of the act "to regulate and improve the civil service,” etc. (22 Stat. L., 403), for the employment of a “chief examiner," does not come in conflict with the constitutional rule on the subject of appointments. The word "employ" is sometimes used in our legislation in a sense equivalent to "appoint." (Opinion of Jan. 22, 1883, Vol. XVII, p. 504.) 13. Classification.—Departmental clerks whose salaries are $900 or $1,000 per annum, although not belonging to any of the classes in section 163, Revised Statutes, come within the scope of the act of January 16, 1883, chapter 27, and may be classified thereunder, for the purpose of examination, into one or more classes, as may be deemed expedient. Under section 1753, Revised Statutes, the President may prescribe regulations for admission into the civil service, and thereby restrict original entry therein to one or more of the classes that may exist, or permit such entry to all of them, as in his judgment will best promote the efficiency of the service. If the $900 to $1,000 clerkships are constituted a distinct class, a promotion from such class to another class without examination, excepting where, in conformity to the act, the person to be promoted is specially exempted, would be forbidden by the act of January 16, 1883. To be eligible for appointment to any class (whether by promotion or otherwise) the applicant must have passed an examination to test his fitness for the place. (Opinion of Nov. 9, 1883, Vol. XVII, p. 621.) 14. Special examiners of the Pension Bureau.-Special examiners of the Pension Bureau authorized to be appointed by the act of July 7, 1884, chapter 331, and by the act of March 3, 1885, chapter 343, come within the purview of the civilservice act of January 16, 1883, chapter 27; and in appointing such officers the latter act and rules thereunder should be observed. The office of special examiner is newly created by the said act of 1885, as it was by the said act of 1884, the term under each act being for one year only. (Opinion of May 7, 1885, Vol. XVIII, p. 172.) 15. Railway Mail Service-Appointment.—T. was appointed a railway postal clerk by the Postmaster-General on April 29, 1889, without having undergone a civilservice examination (none being then required for such appointment), but he did not take the oath of office and enter upon its duties until May 18, 1889. In the meantime, namely, on May 1, 1889, civil-service rules for the railway mail service went into effect, requiring an examination thereunder as a preliminary to making an appointment like the above: Held, That T. was legally appointed on April 29; that his appointment was complete on that date, although he did not qualify by taking the oath of office until afterwards, and that no examination under the civil-service rules was required in his case. (Opinion of Oct. 14, 1889, Vol. XIX, p. 410.) 16. Reinstatement.-F., a clerk in the War Department, resigned June 30, 1888, and on November 2, 1888, was reappointed to a clerkship in the same Department on a certificate for reinstatement given by the Civil Service Commission under Departmental Rule X (now Rule IX), but failing to avail himself of this opportunity to reenter the service, the last-mentioned appointment was canceled January 28, 1889. On August 13, 1889, the Secretary of War requested that F. be again certified by the Commission for reinstatement; but the Commission, on August 25, 1889, declined to issue a certificate, on the ground that he had been separated from the service more than a year, and was not eligible for reappointment under said rule: Held, That the decision of the Commission, namely, that a second certificate for reappointment could not issue to F. because he had been separated from the service for more than a year, was in accordance with Rule X. (Opinion of Oct. 26, 1889, Vol. XIX, p. 416.) 17. Employment of substitutes.-In the matter of the proposed amendment of Departmental Rule VII and revocation of Departmental Rule II of the Regulations of the Civil Service Commission (with a view to provide for the employment of substitutes for clerks, copyists, and other employees in the Departments who are temporarily absent on account of sickness or other unavoidable cause, and for the selection of such substitutes from persons regularly certified by the Civil Service Commission), considered in connection with section 4 of the act of August 5, 1882, chapter 389, and section 4 of the act of March 3, 1883, chapter 128, the Commission is advised that while the amendment proposed is not beyond the power of the Commission, with the approval of the President, to make, yet that such amendment would be inoperative whenever it should become necessary to make an additional expenditure for the employment of substitutes. (Opinion of Mar. 6, 1890, Vol. XIX, p. 507.) 18. Railway Mail Service-Transfer clerks.-Upon the facts submitted (which are set forth in the opinion): Advised, That the appointment of certain railway transfer clerks, who had not been examined and certified for appointment by the Civil Service Commission, was not within the amendment of clause 5 of Railway Mail Rule II, adopted August 19, 1889, which excepts from examination clerks in the railway mail service who are "employed exclusively as porters in handling mail matter in bulk, in sacks, or pouches, and not otherwise." Section 1019 of the Postal Regulations (edition of 1887) can not prevail over, but must yield to, the subsequently adopted amendment of said clause 5, which should be strictly confined to the class of transfer clerks therein mentioned. (Opinion of July 8, 1890, Vol. XIX, p. 583.) 19. Certificate of county officer in application for examination.—The words "departmental service" and "the service," as used in the proviso in that part of the legislative, executive, and judicial appropriation act of July 11, 1890, chapter 667, which relates to the Civil Service Commission, mean the classified civil service as established by sections 163 and 167, Revised Statutes, and section 6 of the act of January 16,1883, chapter 27. The words in the same proviso, viz, “Promotion or appointment in other branches of the Government," signify promotion or appointment in the classified service of some other Department than that to which the applicant may belong. Semble, That an application for a transfer is not within the exception of the proviso. Congress not having designated in the proviso any particular county officer or officers who may make the certificate required to accompany the application, this matter must be presumed to have been left as a subject for regulation by the Civil Service Commission. (Opinion of Aug. 2, 1890, Vol. XIX, p. 624.) 20. Actual bona fide residence.—Meaning of the words "an actual bona fide resident," as used in the proviso of the paragraph of the act of Congress of July 11, 1890, making an appropriation for the expenses of the Civil Service Commission. Just what constitutes an actual bona fide resident is not always easy to determine. That a man may have an actual bona fide residence in one place and be bodily absent therefrom for months and even years together is certainly true. Instance of a Government official. Such a person is liable to all the burdens of residence and citizenship at home. A person who leaves his home in one of the States, with his family, and engages in business, public or private, in the District of Columbia, or elsewhere, denies his liability to the burdens of residence at his former State home, and is not an actual bona fide resident at that place. Claim to vote in the State from which he came would not make him a proper applicant for the examination provided for in this section. It was the purpose of the act to discriminate against persons of the latter class, persons who claim the benefit of State citizenship and disclaim or fail to discharge any of the obligations of such State residence and citizenship. (Opinion of Apr. 1, 1891.) 21. Revocation of order canceling selection for appointment.—Whether appointing officer may revoke order revoking Mrs. B.'s selection for appointment, withdraw his notice to the Commission of this revocation, and appoint Mrs. B. without further certification. Mrs. B. failed to receive the notice of her selection for appointment, not through any fault or neglect on her part, but probably from an error of the Department in addressing the notice to Miss instead of Mrs. B., and |