* certificate of That hereafter every application for exami- Residencenation before the Civil Service Commission for appoint-proper officer. ment in the departmental service in the District of Co lumbia 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 and bona fide resident of said county, and had been such resident for a period of not less than six months next preceding." 26 Stat., 235. 235; Sup. R. But this provision shall not apply to persons who may 26 Stat. L., be in the service and seek promotion or appointment in S., vol. 1, 2d other branches of the Government. 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. (19 Op. A. G., 624.) Authority of the Commission to prescribe certain regulations respecting legal residence. The President and the Civil Service Commission can make all reasonable regulations as to the nature of the testimony required to establish the facts as to residence, but they can not narrow * * * ed., p. 772, the definition of the statutory phrase "actual bona fide residence" found in the act of July 11, 1890. (26 Stat., 235.) Actual bona fide residence.-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 of 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. (20 Op. A. G., 60.) 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 a Actual domicile of one year now required by Act of July 2, 1909. See page 18. 43845-10-2 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 bases her claim to a separate legal residence. Prohibition of voluntary service except in emergencies. 23 Stat. L., 17; Supp. R. S., vol. 1, 2d ed., p. 427.b No civil pension roll. 30 Stat. L., 890, chap. 187, Residence, minors.-The legal residence of minors is the same as that of their parents or guardians. See section 7, Census Act of July 2, 1909, and legal opinion relative thereto, page 158, Twenty-sixth Report. * * * Hereafter all examinations of applicants for 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. (Sec. 7, Census Act of July 2, 1909.) See opinions, Attorney-General, August 18, 1909, and November 15, 1909, page 158, Twenty-sixth Report. PROHIBITORY STATUTES WITHOUT PENALTIES." * * * Hereafter no department or officer of the United States shall accept voluntary service for the Government or employ personal service in excess of that authorized by law except in cases of sudden emergency involving the loss of human life or the destruction of property. The establishment of a civil pension roll or an honorable service roll, and the exemption of any of the officers, sec. 4; 2 Supp., clerks, or persons in the public service from the existing laws respecting employment in such service is hereby prohibited. 946. No employ ment permitted except upon specific appropriation. 22 St. L., 255. * * That no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee shall * be employed in any of the executive departments or subordinate bureaus or offices thereof at the seat of government, except only at such rates and in such numbers, respectively, as may be specifically appropriated for by Congress for such clerical and other personal services for each fiscal year; and no civil officer, clerk, draughtsman, copyist, messenger, assistant messenger, mechanic, watchman, laborer, or other employee shall hereafter be employed at the seat of government in any executive department or subordinate bureau or office thereof or be paid from any appropriation made a Many statutes affecting the public service declare certain acts unlawful and yet provide no penalty for their violation. The efficiency of administrative discipline and the recognized nullity of acts done in violation of law is considered sufficient for their enforcement. For convenience they are grouped under the above designation. See Glavey v. U. S. (1900), 35 Ct. Cls., 242. PROHIBITORY STATUTES WITHOUT PENALTIES. 19 outside for for contingent expenses, or for any specific or general purpose, unless such employment is authorized and payment therefor specifically provided in the law granting the appropriation, and then only for services actually rendered in connection with and for the purposes of the appropriation from which payment is made, and at the rate of compensation usual and proper for such services; Details from * * * all details of civil officers, clerks, or other sub-duty within ordinate employees from places outside of the District of Columbia. Columbia for duty within the District of Columbia except temporary details for duty connected with their Lapsed salarespective offices, be, and are hereby, prohibited; and L., 255; Supp. thereafter all moneys accruing from lapsed salaries, or 2d ed., p. 374, from unused appropriations for salaries, shall be covered into the Treasury. Employees in the executive departments not specifically provided for.—The provision in section 4 of the act of August 5, 1882, that no employee shall be employed in any executive department or be paid from any specific or general appropriation "unless such employment is authorized and payment therefor specifically provided" in the appropriation prohibits the employment in the office of Naval War Records in the Navy Department of persons employed under and paid from the appropriation for increase of the Navy. (9 Dec. of Compt. Treas., 63.) Payment of double compensation to a person holding two appointments at the same time.-Where a person who holds a federal position with a fixed salary or compensation is appointed to another independent place or position, the holding of which is not incompatible with the holding of said prior place, he is not entitled to compensation for such second position unless the salary or compensation thereof was fixed by law or regulation prior to his appointment thereto. (10 Dec. of Compt. Treas., 726.) Detail prohibited.—Section 4 of the act of August 5, 1882, having prohibited the detailing of civil officers, clerks, and other subordinate employees from places outside the District of Columbia for duty within the District of Columbia, the detailing for duty in the office of the Commissioner-General of Immigration at Washington, D. C., of an immigrant District of ries. 22 Stat. R. S., vol. 1, sec. 4. inspector stationed at Alexandria, Va., is not authorized, and he is not entitled to compensation while so detailed. Retired army officers.-A retired officer of the army 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. (15 Op. A. G., 306.) Duties to which employees may be assigned.-Section 4 of the act of 1882 refers only to the appointment or employment of persons in the federal service, and does not restrict in any manner the kind of work to which they shall be put after being appointed or employed. The act in nowise limits the discretion of the heads of the executive departments as to the character of work which shall be required of their several employees, but is only intended to prevent the employment of subordinate officers or employees at the seat of government without specific appropriation for their payment. Where a specific appropriation is made for a position named, there is no statutory restriction which prevents the use of such specific appropriation in paying for services which were clearly not covered by the title of the position for which the appropriation was made. (26 Op. A. G., 522.) Holding of two offices. 28 Stat. L., 205; Supp. R. S., vol. 2 [No. 4], p. 212, sec. 2. * * * No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the army or navy whenever they may be elected to public office or whenever the President shall appoint them to office, by and with the advice and consent of the Senate. Executive order regulating the holding of two offices.-An executive order of January 17, 1873, declares that "persons holding any federal civil office by appointment under the Constitution and laws of the United States will be expected, while holding such office, not to accept or hold any office under any state or territorial government, or under the charter or ordinances of any municipal corporation." Exceptions are made in case of justices of the peace, notaries public, commissioners of deeds, and postmasters whose remuneration does not exceed $600 a year. The order would apply to the office of alderman or common councilman in a city, or of town councilman of a town or village, or to appointments under city, town, or village governments, whether No compensation for extra services. R. S., sec. 1764. Stansbury v. U. with or without compensation. Positions on boards of education, school committees, public libraries, or in religious or eleemosynary institutions, professorships in colleges, and positions as mechanics or laborers employed by the day are not regarded as "offices" under the order, and officers of the Federal Government, in common with all good citizens, may engage in such service if the attention required does not interfere with the regular and efficient discharge of their duties under the Federal Government. Federal officers are not prohibited from being officers of the militia, or from rendering unpaid service in local or municipal fire departments. (See pp. 126-128, Fourteenth Report.) No allowance or compensation shall be made to any officer or clerk by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law. U. S., 281; Strong v. U. S., 34 Fed. Rep., 18; Folger v. U. S. 13 Ct. Cls., 86; Landreau v. U. S., 16 Ct. Čls., 74; Hedrick v. U. S., 16 Ct. Cls., 88; Mathews v. U. S., 32 Ct. Cls., 123. Three-year provision in transfers. 34 Stat., 389, 449. It shall not be lawful hereafter for any clerk or other employee in the classified service in any of the executive departments to be transferred from one department to another department until such clerk or other employee shall have served for a term of three years in the department from which he desires to be transferred. The Attorney-General, in an opinion rendered March 29, 1907 (26 Op., 209), decided that the term "department," as used in laws relating to the civil service, is distinguished from "office," "bureau," and “branch,” and that subordinates of the several executive departments are distinguished from employees of such other governmental agencies. He therefore held that it is lawful for the Civil Service Commission to consent to the transfer of a classified employee from an independent office of the Government to a department or to another independent office or bureau, although such employee may not have served three years in the office or bureau from which he seeks transfer, as is required by section 5 of the act of June 22, 1906, of clerks and employees of the executive departments. ners, and agents, although employed usually or invariably away from the seat of government-are governed by the above-mentioned statutory provision with regard to transfers. Under date of September 23, 1907, the President, by executive order, amended the rules so as to extend the three-year requirement in transfers to those branches of the service not covered by the act, but with the provision that the Commission may waive such requirement when it deems such action necessary in the interests of the service, in transfers other than from one executive department to another. (See Rule X, sec. 8a.) Details. Sec. 6. In the same opinion it was held that the "field force" of a department-that is, its classified employees under its immediate control, as inspectors, examiHereafter it shall be unlawful to detail civil officers, Det of June 22, clerks, or other subordinate employees who are author-1906. ized or employed under or paid from appropriations made for the military or naval establishments, or any other branch of the public service outside of the District of Columbia, except those officers and employees whose details are now specially provided by law, for duty in any bureau, office, or other division of any executive department in the District of Columbia, except temporary details for duty connected with their respective offices. PENAL STATUTES. contributions in The act of March 2, 1867 (sec. 1546, R. S.), prohibits Political the solicitation of a political contribution from any navy- navy-yards. yard workingman by any United States officer or employee, and also prohibits their removal for political reasons. Penalty-dismissal from the public service. See also section 13 of the act and note thereunder. The act of August 15, 1876 (sec. 6, 19 Stat. L., 169), Political prohibits all civil officers and employees not appointed by the President, with the approval of the Senate, from "giving or receiving from any other officer or employee of the government any money or property, or other thing of value, for political purposes. Penalty-dismissal from the public service and fine of $500. See also section 11 of the act, and note thereunder. Constitutionality of act of August 15, 1876, section 6.-The sixth section of the act of August 15, 1876, chapter 287, prohibiting, under penalties therein mentioned, certain officers of the United States from requesting, giving to, or re ceiving from any other officer, money or property or other thing of value for political purposes is not unconstitutional. (Opinion of Chief Justice Waite, United States Supreme Court, in the matter of Newton Martin Curtis, 106 U. S., 371, printed in full in Fourth Report, p. 542.) |