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teachers or as inatrons, as such assignment would be contrary to the provisions of the order of classification, which provides that no person shall be admitted to any place not excepted from examination by the civil-service rules in any of the designated classes until he or she shall have passed an appropriate examination under the Civil Service Commission, and his or her eligibility has been certified to by said Commission or the appropriate board of exaininers. The assi ment to the duties of a classified place would undoubtedly, within the meaning of this order, be an admission to that place. (Letter book U, p. 238, April 30, 1892.) 2. ASSISTANT TEACHERS. *
Views as to classification of.-It seems to the Commission, after careful recent inquiry and upon the presentation of facts made to it by experts in Indian work on the agencies, to be desirable to classify the assistant teachers, while at the samo time providing that the positions, as such, shall be open only to Indians upon passing a suitable noncompetitive examination. At present these positions are unclassified. This strictly limits the kind of work to which the holder of any such position can be put, and also prevents such holder from gaining a promotion after service, no matter how meritorious. The Commission feels that a double purpose will be subserved by allowing Indians to enter the service. In the first place, the best class of Indian students would be greatly encouraged by having as a prize set before them the chance of attaining such a position. In the next place, there are positions, such as in small outlying schools on some of the reservations, which whites can not well be induced to take, but where Indian teachers might do very good work in at least preparing their pupils for entrance upon a course of advanced study. While the matter of compensation is one entirely within the control of the Department, yet the Commission would suggest that it might be a good thing to have the salary of the assistant teachers limited to, say, $15 a month, the entrance to be by noncompetitive examination, said examination being held by the Conimission upon request of the Commissioner of Indian Affairs, and only allowed to Indians or persons with Indian blood having treaty rights. After service of a year, or a longer time if deemed advisable, as assistant teacher the appointee could, upon the nomination of the Indian Commissioner and upon passing a further noncompetitive examination established by the Commission, be promoted to the grade of regular teacher. It has been suggested to the Commission that it would be well perhaps to establish' two grades of assistant teacher, one being at, say, $10 and one at $20 a month. (Letter to Commissioner of Indian Affairs, April 11, 1893.) 3. CERTIFICATION.
Indian Rule III, section 7, provides that for the Indian Service there shall be four districts, and a separate register of eligibles for each grade of examination for each district; and that, upon the written request of any eligible, his name shall be entered upon the register of any one or more of the districts other than that in which he resides. The register of none of these districts has been or is sufficiently supplied with eligibles residing within the district to meet the demands of the service, and while this condition continues, or until the Commission directs otherwise, the three highest in grade shall be certified from the district in which the vacancy exists, notwithstanding the whole number of certifications given to some eligibles thereby may exceed three, it being held that the phrase "who have not been three times certified,” occurring in clause (b) of section 1 of Indian Rule IV, applies to the register from which the certification is made, and means the same as though it read “who have not been three times certified from said register.” (Minutes, October 14, 1892.) 4. PHYSICIANS.
Minimum age limitation for.-" The Indians as a rule look upon persons of age and experience as alone qualified to render medical service, and very often refuse to accept attendance or medicines from those who are young in years, believing that they
* The Secretary of the Interior has since decided to treat Assistant Teachers as classified.
are not sufficiently experienced to be relied upon. The change of the rule (reducing the minimum age limitation from 25 to 21 years) might therefore work a hardship to the persons appointed, in that after having gone to the expense incident to removal to the far West, it might be found that the Indians refuse to accept their services, and as, in the case of physicians, the most important thing is to secure the confidence of the Indians, failure to do so would of course render necessary the severance of the connection of the appointee with the service.” (Letter of the Commissioner of Indian Affairs, September 15, 1893.) 5. REINSTATEMENT.
Teacher and matron.-While the position of teacher may be no higher than that of matron, from some points of view, yet under the rules of the Commission a much higher grade of examination, requiring a much broader and more thorough educational training to pass it, is prescribed for it, and from this point of view it is a higher position, and this view ought to govern the action of the Commission. The qualifications required in the two positions are so unlike that the positions can not be assimilated. In view of these two considerations the Commission would not be justified in issuing a certificate for reinstatement to the position of teacher of a person forinerly in the grade of matron. (Minutes, October 14, 1892, cl. 1.)
SYLLABI OF OPINIONS OF ATTORNEYS-GENERAL ON QUESTIONS
ARISING UNDER THE CIVIL-SERVICE ACT AND RULES.
1. Preference, section 1754, Revised Statutes.- The joint resolution of March 3, 1865 (sec. 1754, Rev. Stat.), considered in connection with the act of March 3, 1871, chap. 114, and held 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 August 13, 1881, vol. XVII, p. 194.)
2. Employment of chief examiner.-Doubt suggested whether the provision in sectior 3 of the act “ to regulate and improve the civil service,” etc. (22 Stat., 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 January 22, 1883, vol. xvii, p. 504.)
3. 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 civilservice act of January 16, 1883, chap. 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.)
4. 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, como 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 or $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 November 9, 1883, vol. XVII, p. 621.)
5. 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 December 9, 1884, vol. XVIII, p. 83.)
6. 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 civil-service 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.)
7. Exceptions from examination in the Pension Bureau. *—The officers in the Pension Bureau doscribed as medical referee, assistant medical referee, medical examiners, and law clerk, being “exclusively professional,” do not fall within the operation of the civil-service law; they are excepted therefrom by Rule XIX.
Those described as principal examiners for review board are not excepted, and in appointing them the civil-service law and regulations should be observed. (Opinion of May 28, 1885, vol. XVIII, p. 187.)
8. 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 August 1, 1885, vol. XVIII, p. 245.)
9. 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.)
10. Preference under section 1754, Revised Statutes.-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.)
11. 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 October 14, 1889, vol. xix, p. 410.)
12. 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, but failing to avail himselfof this opportunity to reenter the service, the last-mentioned appointment was canceled January 28, 1889. On August 13, 1883, 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 October 26, 1889, vol. xix, p. 416.)
*For present status of these places seo page 299
13. Quartermaster's volunteer8.—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, of the civil service, 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 November 19, 1889, vol. xix, p. 434.)
14. Employment of substitutes.—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 employés 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, and 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 March 6, 1890, vol. xix, p. 507.)
15. 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, and by completing his contract was honorably discharged the service, is within the proviso to Departmental Rule X of the Civil Service Rules and Regulations, and entitled to the benefits thereby conferred. (Opinion of April 8, 1890, vol. xix, p. 533.)
16. 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 Adjutant-General's Office, April 1, 1864, in which he served on clerical duty until May 13, 1868, when he was discharged through no delinquency or unisconduct on his part. Application being now made by him for reinstatement under amended Departmeutal Rule X 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, and therefore that he can not be certitied thereunder. (Opinion of May 9, 1890, vol. xix, p. 552.)
17. 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 amendinent 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.)
18. Certificate of county officer in application for examinution. The words “departmental service” and “the service” as nsed 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 section 153, Revised Statutes, and section 6 of the act of January 16, 1883, chapter 27. H. Ex. 1, pt. 8
The words in the saine 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 August 2, 1890, vol. xix, p. 624.)
19. 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 April 1, 1891.)
20. 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 the failure of the postmaster at the address on the notice to forward the letter to Mrs. B. at a new address which had been left with him.
There are weighty reasons why such a course would be inadmissible under the civil-service rules and regulations. It seems clear that after the revocation of the order of selection Mrs. B. stood in the same position as the other eligibles whose names were certified with hers; like them she had been certified but not appointed. (Opinion of April 8, 1891.)
21. Review of decision by Commission upon question arising under the rules.-Whether E is eligible for reinstatement by reason of service in regiment of Indiana "minute men" at the time of the insurgent foray known as Morgan's Raid. The Commission decided that as the records of the War Department do not show that such an organization was in the service of the United States, he was not entitled to reinstatement.
If the Commission determined the question in accordance with law, no further proceedings in the premises are authorized.
No statute is found which authorizes the Secretary of the Interior or the AttorneyGeneral, upon the suggestion of the Secretary, to reverse or to review this action of the Commission. The limitations of the statutes and the precedents established by learned predecessors, preclude me from now reviewing the decision made by the Civil Service Commission. (Opinion of June 25, 1891.)
22. Validity of appointment contrary to apportionment.-H was examined alleging an actual, bona fide residence in one State, and subsequently and before appointment became a resident of another State without advising the Commission of his change of residence. Had he done so his name would have been transferred on the register