STATUTES AFFECTING THE CLASSIFIED

SERVICE.

DIRECTORY STATUTES.1

thority to pre

concerning

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SEC. 1753. The President is authorized to prescribe President's ausuch regulations for the admission of persons into the scribe regulations civil service of the United States as may best promote pointment. the efficiency thereof, and ascertain the fitness of each candidate in respect to age, health, character, knowledge, and ability for the branch of service into which he seeks to enter; and for this purpose he may employ suitable persons to conduct such inquiries, and may prescribe their duties, and establish regulations for the conduct of persons who may receive appointments in the civil service. (R. S., act of Mar. 3, 1871.)

regulations.

SEC. 161. The head of each department is authorized Departmental to prescribe regulations not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. (R. S., act of Aug. 15, 1876.)

out the most cogent and persuasive reasons. (Robertson v. Downing, May 14, 1888, 127 U. S., 613.)

(Upon this general subject see also Opinions of Attorneys General: 10 Op., 469; 11 Op., 109; 15 Op., 94; 22 Op., 167; and 22 Op., 266.) 2

"The regulation of a department of the Government is not, of course, to control the construction of an act of Congress when its meaning is plain, but when there has been a long acquiescence in a regulation, and by it rights of parties for many years have been determined and adjusted, it is not to be disregarded withSEC. 165. Women may, in the discretion of the head, Clerkships open of any department, be appointed to any of the clerkships therein authorized by law, upon the same requisites and conditions, and with the same compensation, as are prescribed for men. (R. S., act of July 12, 1870.)

to women.

Number of clerks of higher diminished and

Whenever, in the judgment of the head of any department, the duties assigned to a clerk of one class can be as grade may be well performed by a clerk of a lower class or by a female lower increased.

1 These statutes either authorize or direct certain ways of conducting the public business which falls within the purview of the civil service act and rules, and depend upon administrative discipline for their enforcement.

2 The general subject of the legal force of regulations is treated at length in "Remarks on the Army Regulations and Executive Regulations in General," by G. Norman Lieber, Judge Advocate General, United States Army (1898).

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clerk, it shall be lawful for him to diminish the number of the clerks of the higher grade and increase the number of clerks of the lower grade within the limit of the total reduction of force, appropriation for such clerical service: Provided, That in making any reduction of force in any of the executive departments, the head of such department shall retain those persons who may be equally qualified who have been honorably discharged from the military or naval service of the United States and the widows and orphans of deceased soldiers and sailors. (19 Stat., L., 169, act of Aug. 15, 1876.)

66* * * Reports are required from this (Commissioner of Pensions) grand division of the service to the head of the department for such action as the higher officer may take within the law and when ratified become the act of the Secretary of the Interior.

66* * * The matter of qualification as between the persons then employed in the service was an administrative func

preference in ap

civil offices.

tion which the courts could neither supervise nor inquire into after the exercise of the discretion of the proper official in dispensing with the services of those adjudged to be least qualified under the law which required a reduction in the force." (Medkirk v. U. S., 44 Ct. Cls., 469; affirmed 45 Ct. Cls., 395; Keim v. U. S., 177 U. S., 290.)

War veteran SEC. 1754. Persons honorably discharged from the pointments to military or naval service by reason of disability resulting from wounds or sickness incurred in the line of duty shall be preferred for appointments to civil offices, provided they are found to possess the business capacity necessary for the proper discharge of the duties of such offices. (R. S., act of Mar. 3, 1865.)

The joint resolution of March 3, 1865 (sec. 1754, R. S.), considered in connection with the act of March 3, 1871, chapter 114 (sec. 1753, R. S.), 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 Atty. Gen., Aug. 13, 1881, 17 Op., 194.) Preference under 1754, Revised Statutes, is not subject to the law of apportionment and extends over all others on the eligible list irrespective of their ratings. (Opinion Atty. Gen., May 12, 1910, 28 Op., 298.)

and transfers of

clerks. Post

office.

"These sections (1754 R. S. and 19 Stat., 169, sec. 3) do not contemplate the retention in office of a clerk who is inefficient, nor attempt to transfer the power of determining the question of efficiency. from the heads of departments to the * The preference, and it is only a preference, is to be exercised as between those 'equally qualified,' and this petitioner was discharged because of inefficiency." (Keim v. U. S., 1900, 177 U.S., 290.)

courts.

* *

Preference under this section applies only to original entrance to the service and not to promotion. (Minute of commission, Apr. 18, 1896.)

Assignments In the assignment or transfer of clerks from the Railway railway mail Mail Service, however, preference shall be given to the persons honorably discharged from the military or naval service who served in the Civil War and who are now serving as clerks on the railway mail cars in order that they may be transferred to clerical service in the depart

domicile.

ment or in the post offices and relieved from service on said cars as rapidly as practicable, provided they are found to possess the business capacity necessary for the proper discharge of the duties of the offices to which they may be transferred. (33 Stat. L., 1088, act of Mar. 3, 1905). * ** Hereafter all examinations of applicants for Residence and positions in the Government service, from any State or Territory, shall be had in the State or Territory in which such applicant resides, and no person shall be eligible for such examination or appointment unless he or she shall have been actually domiciled in such State or Territory for at least one year previous to such examination. (36 Stat. L., 1, act of July 2, 1909.)

In so-called "nonassembled" examinations held by the Civil Service Commission it has required competitors to show that they have been actually domiciled in the State or Territory in which they reside for at least one year previous to the examination, and where a competitor is temporarily absent from his State at the time of filing his application he is not required to return to such State for the purpose either of filling out his application and making oath to it or of furnishing the other data and information required in connection with his examination. These examinations are not "had" at any particular place, and Congress in enacting this statute seems to have had in mind the examinations referred to in section 3 of the civil-service act, held by local boards of examiners "so located as to make it reasonably convenient and inexpensive for applicants to attend before them." "In view of the practical construction which has been placed upon the statute for some years by the body charged with its administration, I do not feel warranted in holding such construction incorrect." (Opinion of Atty. Gen., July 22, 1913, 30 Op., 194.)

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 Attorney General 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. (Opinions, Atty. Gen., Aug. 18 and Nov. 15, 1909, 27 Op., 546; 28 Op., 78.)

The Attorney General also held June 17, 1910 (28 Op., 348), that this proviso has no application to those already in an apportioned service.

"The restrictions of the act (section 7) as to one year domicile and examination within the State of legal residence do not apply to examinations for promotion or transfer. The act does apply in cases of reinstatement where examination is necessary. (Minute of commission, July 10, 1909.)

Residence, married women. The legal residence of a married woman is the same as that of her husband, and so remains until she is separated from him by an absolute or limited divorce. A married woman living apart or divorced from her husband may, if she so desires, for the purpose of filing an application for examination, claim a legal residence other than his, but she must furnish a sworn statement of the facts upon which she based her claim to a separate legal residence. (Minute of commission, May 23, 1907.)

Who may exeoute oaths to ex

SEC. 8. After June thirtieth, nineteen hundred and pense vouchers. twelve, postmasters, assistant postmasters, collectors of customs, collectors of internal revenue, chief clerks of the various executive departments and bureaus, or clerks designated by them for the purpose, the superintendent, the acting superintendent, custodian, and principal clerks of the various national parks and other Government reservations, superintendent, acting superintendents, and principal clerks of the different Indian superintendencies or Indian agencies, and chiefs of field parties, are required, empowered, and authorized, when requested, to administer oaths, required by law or otherwise, to accounts for travel or other expenses against the United States, with like force and effect as officers having a seal; for such services when so rendered, or when rendered on demand after said date by notaries public, who at the time are also salaried officers or employees of the United States, no charge shall be made; and on and after July first, nineteen hundred and twelve, no fee or money paid for the services herein described shall be paid or reimbursed by the United States. (37 Stat. L., 487, act of Aug. 24, 1912.)

Army Quartermaster Corps.

That as soon as practicable after the creation of a Quartermaster Corps in the Army not to exceed four thousand civilian employees of that corps, receiving a monthly compensation of not less than thirty dollars nor more than one hundred and seventy-five dollars each, not including civil engineers, superintendents of construction, inspectors of clothing, clothing examiners, inspectors of supplies, inspectors of animals, chemists, veterinarians, freight and passenger rate clerks, civil-service employees and employees of the classified service, employees of the Army transport service and harbor-boat service, and such other employees as may be required for technical work, shall be replaced permanently by not to exceed an equal number of enlisted men of said corps; and all enlisted men of the line of the Army detailed on extra duty in the Quartermaster Corps or as bakers or assistant bakers shall be replaced permanently by not to exceed two thousand enlisted men of said corps; and for the purposes of this act the enlistment in the military service of not to exceed six thousand men, who shall be attached permanently to the Quartermaster Corps, and who shall not be counted as a part of the enlisted force provided by

law, is hereby authorized: Provided, That the enlisted force of the Quartermaster Corps shall consist of not to exceed fifteen master electricians, six hundred sergeants (first class), one thousand and five sergeants, six hundred and fifty corporals, two thousand five hundred privates (first class), one thousand one hundred and ninety privates, and forty-five cooks, all of whom shall receive the same pay and allowances as enlisted men of corresponding grades of the Signal Corps of the Army, and shall be assigned to such duties pertaining to the Quartermaster Corps as the Secretary of War may prescribe: Provided further, That the Secretary of War may fix the limits of age within which civilian employees who are actually employed by the Government when this act takes effect and who are to be replaced by enlisted men under the terms of this act may enlist in the Quartermaster Corps: Provided further, That nothing in this section shall be held or construed so as to prevent the employment of the class of civilian employees excepted from the provisions of this act or the continued employment of civilians included in the act until such latter employees have been replaced by enlisted men of the Quartermaster Corps. (37 Stat. L., 593, act of Aug. 24, 1912.)

ganization.

The operation of the Executive order of March twenty-Outlines of oreighth, nineteen hundred and twelve, for the annual submission to the Civil Service Commission of an outline of organization of the Government of the United States is suspended until otherwise provided by law.1 July 16, 1914.)

(Act of

Efficiency rating based on per

be established in

The Civil Service Commission shall, subject to the approval of the President, establish a system of efficiency sonal records to ratings for the classified service in the several executive departments. departments in the District of Columbia based upon records kept in each department and independent establishment with such frequency as to make them as nearly as possible records of fact. Such system shall provide a minimum rating of efficiency which must be attained by Ratings for proan employee before he may be promoted; it shall also tion, and retenprovide a rating below which no employee may fall without being demoted; it shall further provide for a rating below which no employee may fall without being dismissed for inefficiency. All promotions, demotions, or

1 On July 16, 1913, the President suspended the operation of the Executive order of March 28 for the fiscal year ended June 30, 1914.

tion.