Following are the opinions of eminent lawyers to whom the Commission submitted the contentions of the Department for an opinion:

OPINION OF MR. MOORFIELD STOREY, OF BOSTON, MASS.

[December 8, 1897.]

"You request me to give you my opinion on the following questions:

"1. Are deputy collectors of internal revenue officers of the United States or mere personal employees of the collector?

2. Does the term of office of deputy collectors of internal revenue cease upon the appointment of a successor under whom they were appointed?

"3. Are deputy collectors of internal revenue legally in the classified service and subject to the provisions of the civil-service laws and rules?'

"I have considered these questions, and am of opinion, first, that deputy collectors of internal revenue are officers of the United States and not personal employees of the collector; second, that their term of office does not end upon the appointment of a successor to the collector to whom they were appointed, and, third, that deputy collectors of internal revenue are legally in the classiñed service and subject to the provisions of the civil-service law and rules."

OPINION OF MR. HOLMES CONRAD, LATE SOLICITOR-GENERAL.

[November 27, 1897.]

"You submit for my opinion the questions: 'Are deputy collectors of internal revenue officers of the United States within the meaning of the act of January 16, 1883 (22 Stats., 403)? When does their term of office cease? Are they properly within the classified service and subject to the provisions of the civil-service act and rules? "It became my duty, officially, to consider the general subject involved in these questions some time ago. I can only now state the conclusions then reached.

"Persons may be 'officers,' 'public officers,' and 'officers of the United States' within the meaning of some statutes, while not so within the meaning of others. Each statute must be construed in the light of its declared purpose and intent without such strict adherence to the letter as defeats the spirit. In United States t. Monatt (124 U. S., 203), it was held that a paymaster's clerk was not an officer of the Navy within the meaning of an act of Congress providing mileage, and in United States v. Hendee (124 U. S., 309) it was held that a paymaster's clerk was an officer of the Navy within the meaning of the act providing longevity pay. Within the reasoning of United States v. Rastwell (6 Wall., 385) a deputy collector of internal revenue, appointed by the collector of internal revenue, but whose official duties are prescribed by law, and whose compensation is paid by the United States, is an 'officer of the United States.'

"The collector of internal revenue is appointed for no fixed term or period. His office becomes vacant only by death, resignation, or removal.

"By act of March 1, 1879, chapter 125, section 2, it is provided 'In case of a vacancy occurring in the office of the collector the deputies of such collector shall continue to act until his successor is appointed,' and sections 3149 and 3150, Revised Statutes, contemplate a tenure of office by the deputy independent of that of the collector. Generally, a deputy is one authorized by an officer to exercise the office, or right which the officer possesses, for and in the place of the latter, but in the sections referred to it is apparent that the deputy collector of internal revenue survives his principal, and, I think, he continues in office until death, resignation, or removal relieves him.

"The act of Congress of January 16, 1883, regulating and improving the civil service of the United States, in the third paragraph of section 6, provides for the revision of existing classifications, and for including in one or more of the classes named, 'so

far as practicable, subordinate places, clerks, and officers in the public service pertaining to their respective departments not before classified for examination.' Certain exceptions are made, but these do not embrace deputy collectors. To the President alone is given the power and authority to cause extensions of existing classifications to be made, and to prescribe the regulations by which the law is to be administered. It appears that the Secretary of the Treasury, in the exercise of authority conferred upon him, has embraced deputy collectors in the classification of the officers and employees of his Department to whom the act applies. I have no doubt that such exercise of authority operated to throw around the deputy collectors of internal revenue the same protection which the clerks and employees in the civil service enjoyed."

OPINION OF MR. CHARLES J. BONAPARTE, OF BALTIMORE, MD.

[December 4, 1897.]

"I have carefully considered the three questions discussed in the brief of the United States Civil Service Commission. These questions are:

"I. Are deputy collectors of internal revenue officers of the United States? "II. Is the term of office of a deputy collector of internal revenue determined by the appointment and qualification of a successor to the collector who appointed him?

"III. Are deputy collectors of internal revenue included within the classified service, and subject to the provisions of the civil-service law and rules made in accordance therewith?'

"The first question appears to me to be settled by the language of a number of statutes of the United States. Several of these are mentioned on page 6 of the brief. I may add a reference to two others. By the statute approved March 3, 1885 (23 Stat. L., 404), it is provided that:

"No collector in any district shall recommend, nor shall there be appointed or commissioned, more deputy collectors, storekeepers, storekeepers and gaugers, gaugers, inspectors, or other officers, or allowed to remain in commission more of any of said officers, at any time, than fifteen per centum in excess of the number actually engaged in performing duty at the time and indispensably necessary for the performance of said duty.'

"By the statute approved July 11, 1888 (25 Stat. L., 272), it is provided that: "The number of deputy collectors, gaugers, storekeepers, and clerks employed in the collection of internal revenue shall not be increased, nor shall the salary of said officers and employees be increased beyond the salaries paid during the last fiscal year, exclusive of the number employed under the said act [of Angust 2, 1886], defining butter, etcetera.'

"It is well settled that the recognition of an association as an existing corporation in a statute constitutes such association a corporation de jure as well as de facto. (Basshor v. Dressell, 34 Md., 503; Koch v. N. A. Rw. Co., 75 Md., 222.)

"A fortiori it would seem to be clear that the recognition in a Federal statute of a person in public employ as an officer of the United States constitutes the person such officer.

"I find nothing in the case of Herndon (15 C. Cls. R., 446) and Landrum (16 C. Cls. R., 74) in conflict with this view. The former decides that under section 3148 of the Revised Statutes, prior to its amendment by the statute approved March 1, 1879 (20 Stat. L., 329), there was no privity of contract between a deputy collector of internal revenue and the United States; the second holds that under the same circumstances a deputy collector of internal revenue was not affected by the prohibition of extra compensation to any 'officers in any branch of the public service, or any other person whose salary or emoluments are fixed by law or regulations, contained in section 1765 of the Revised Statutes. Since section 3148, before its amend

ment, authorized the appointment by the collector of 'as many deputies as he may think proper, to be by him compensated for their service,' the ground of decision in each of these cases would seem to be obvious, but they have no relevancy to the question under discussion.

“The second question has been, I think, conclusively settled by authority. In the case of Robb r. Carter (65 Md., 321) the facts are thus stated by the circuit court (p. 332):

""An ordinance of the city requires that the mayor, by and with the consent and advice of the convention of the two branches of the city council, shall annually, in the month of February, appoint a member of the Baltimore bar to be the city solicitor. The terms of office commence on the 1st day of March immediately following the appointments and continue for one year, and there is no expressed provision in any ordinance that the persons so appointed shall hold until the appointment and qualification of their successors.

"The appellee had been appointed solicitor in February, 1885, and the present mayor having nominated him in February, 1886, the nomination was rejected by the city council. On the 15th of March, 1886, he was again nominated by the mayor and rejected by the council; and there having been no appointment subsequently made he has continued to perform the duties of the office and claims the regular monthly compensation payable to the city solicitor.'

"The decision upon the vital question of the case was as follows:

"Every office, when not directly created by the constitution, originates in some statute or ordinance sanctioned by the organic law of the State. The office exists because the public good requires its existence, and it is necessary that the duties assigned to the incumbent should be performed. Therefore, unless there is some clearly expressed and positive prohibition, which, by its terms, operates as an ouster, the person filling the office should continue to discharge those duties until a successor is qualified, no matter whether the office is created by the constitution, by an act of the general assembly, or by a municipal ordinance. Ubi eadem est ratio, eadem est ler.'

"In this case it will be observed that the court held, in practical effect, that the mayor could keep in office after the expiration of his term an officer whom he desired to reappoint, but whom the council would not confirm, by simply nominating him again and again for the position. It was held to be a less evil to thus permit the right of rejection by the council to be practically nullified than to permit an interregnum in a public employment. Other cases might be cited to the same effect, but I know of none so clearly in point as this. I may add that if the statement contained on pages 32 and 33 of the brief as to the practice of the Treasury Departinent be true, as I, of course, assume that it is, this would constitute a strong argument in favor of the continued tenure of deputy collectors, upon the principle announced by the Supreme Court of the United States in the construction of the act approved March 3, 1883 (22 Stat. L., 473), when it says: 'If the meaning of that act were doubtful its practical construction by the Navy Department would be entitled to great weight.' (United States r. Alger, U. S. 152, p. 397.)

"The only difficulty as to the third question would seem to be in understanding how there could be any doubt regarding its answer. If there be any inconsistency between section 3148, Revised Stututes, as amended by the act of 1879, and the civilservice law, the latter, having been approved January 16, 1883, operates pro tanto to repeal the former; therefore, if such an inconsistency were established, this would be no argument against the validity of a classification authorized by the latter law. It would seem, however, perfectly clear that there is no such inconsistency, as is very fairly pointed out in the brief of the Commission. The argument that it is a hardship upon the collector and his sureties to be held responsible for the acts of deputies whom he has not appointed affects only the expediency or the justice of the classification, in nowise its legality; but there is an obvious and conclusive answer to this argument; no one is compelled to become a collector of internal revenue; no one is compelled to become a surety upon the bond of such a collector. Any collector

who finds his position intolerable by reason of the civil-service law can escape from it by resignation, and for the relief of any surety alarmed by the responsibilities it imposes upon him, there is ample provision of law. I venture to predict that if the recent orders of Presidents Cleveland and McKinley receive a thoroughgoing and practical enforcement, very few collectors will resign and very few sureties retire from their bonds."

PRESENT STATUS OF THE CONTENTION RESPECTING THE CLASSIFICATION OF DEPUTY COLLECTORS.

After consideration of the contention submitted by the Treasury Department, the Attorney-General returned it to that Department without decision, as being a hypothetical question. It is understood that the Secretary of the Treasury at a later date submitted the matter to the Solicitor of the Treasury for a decision, but the Commission has not been informed of any decision. The Acting Commissioner of Internal Revenue on November 24, 1897, issued the following order:

"To all Collectors of Internal Revenue:

"By direction of the honorable Secretary of the Treasury you are hereby notified that until otherwise ordered existing rules relative to appointments of deputy collectors must be complied with.

"You will at once take steps necessary for compliance with this order, making your requisitions for certification for original appointments under Civil Service Rule VIII, or reinstatements under Civil Service Rule IX, through this office."

Further than this no action on the Commission's recommendations in this case or in the other cases in the internal-revenue service investigated by it, in which the same questions are involved, has been taken by the Department.

With reference to the questions raised in these cases the Commission holds that, inasmuch as the President had interpreted the acts of Congress as authorizing him to direct the classification of deputy collectors of internal revenue and had directed that they be placed in the classified nonexcepted list and the Department had carried out this direction, deputy collectors could not be treated otherwise than in the classified competitive list until the President's interpretation of the law had been reversed by competent authority. Until reversed, the order of the President and the Treasury Department should be respected and obeyed by the collectors.

NEED OF EXAMINATIONS TO TEST FITNESS IN THE APPOINTMENT OF DEPUTY COLLECTORS OF INTERNAL REVENUE.

Some of the duties of deputy collectors of internal revenue are:

1. To canvass the territory to which assigned to find objects of taxation. (See Revised Statutes, sec. 3172.) This includes the ascertaining of names of persons and all other data necessary relative to ascertaining amounts of special taxes or other internal-revenue taxes.

2. To report to the collector fully as to all information so gathered.

These duties arise in connection with special taxes, specific taxes, and the making of reports. Special taxes are levied upon certain businesses, as rectifiers, liquor dealers, dealers in malt liquors, manufacturers of stills, brewers, manufacturers of oleomargarine, etc. Specific taxes are levied upon distilled spirits at $1.10 per gallon, upon malt liquors at $1 per barrel, upon cigars at $3 per thousand, etc. The making of reports requires much time and good clerical ability.

In ascertaining liability to special taxes, the deputy must have a knowledge of bookkeeping and arithmetic, otherwise he will be unable to tell whether a rectifier or brewer is liable to the special tax for "less than" or for "500 barrels or more there being two rates of tax in each case. He must be able to determine, from the books required to be kept, to which class the brewer or rectifier belongs. These are merely cited to show that educational qualifications are needed before the deputy can properly do his work in regard to special taxes.

Deputy collectors are required to make surveys of distilleries. A "survey" is a

In his decision, handed down November 8, 1897, Judge Jackson covered the following points:

First. That the act known as the "civil-service act" is constitutional.

Second. That Congress has not delegated to the President and the Civil Service Commission legislative powers.

Third. That by Rule III, section 1, the Internal-Revenue Service has been placed under the civil-service act and the rules made in pursuance of it.

Fourth. That the plaintiffs in these actions are officers of the Government in the Internal-Revenue Service.

Fifth. That they can not be removed from their positions except for cause other than political, in which event their removal must be made under the terms and provisions of the civil-service act and the rules promulgated under it, which, under the act of Congress, became a part of the law.

Sixth. That the attempt to change the position and rank of the officers in these cases is in violation of law.

Seventh. That a court of equity has jurisdiction to restrain the appointing power from removing the officers from their positions if such removals are in violation of the civil-service act.

The court accordingly entered orders making the injunctions permanent. From this decree the defendants appealed to the Supreme Court of the United States, but a decision has not yet been rendered by that body.

The opinion of Judge Jackson, in which the facts and contentions in the case are fully brought out, is printed in full among the Decisions of Courts at p. 212, ante.

Pittsburg, Pa., Internal-Revenue District. File 846.

During the month of September, 1897, several complaints were received by the Commission charging the collector of internal revenue in the Twenty-third Pennsylvania district (Pittsburg) with making removals for political reasons in violation of clause 3 of Rule II. An investigation of these complaints was made by a representative of the Commission on October 1, 1897, the facts brought out in which, together with the action taken by the Commission, are set forth in the following extracts from a letter addressed by the Commission to the Secretary of the Treasury on November 4, 1897:

"It appears from the examiner's report that during the brief incumbency of Collector Fruit he had asked for the resignations of Deputies George K. Bochert, J. R. McMichael, and M. F. Howley, each of whom, it appears, was the occupant of a nonexcepted position. Collector Fruit made the following statement, in regard to these requests for resignations, in the presence of the Commission's examiner and a trustworthy witness:

"On September 14, Deputies Bochert, McMichael, and Bond Clerk Howley were individually called into my office and their resignations were verbally requested; no charges were preferred and no explanation offered as to why the requests for their resignations were made, nor did I give them any intimation of my intention to request such resignation.

"One of the deputies, Mr. McMichael, tendered his resignation. Deputy Collector Bochert and Bond Clerk Howley failed to hand in their resignations, and on or about September 23 charges were filed against them looking to their discharge.

"A copy of these charges was furnished to each of the men and a copy forwarded to the Secretary of the Treasury.

"The charge against Bond Clerk Howley, in substance, is political activity, made by one Tim O'Leary, a Democratic politician. The charge against Deputy Collector Bochert, preferred by Wheelock, a special deputy of the Treasury Department, is insubordination and failure to render proper assistance.'

"It will be seen from the interview with the collector, as stated above, that the requests for resignations were made on September 14; that two of the men, Bochert and Howley, failed to resign, and that the charges which are now preferred against