time, namely, on May 1, 1889, civil- as the District of Columbia. Such officers service rules for the Railway Mail Service and employees are as distinct from the went into effect, requiring an examina- civil service of the United States as tion thereunder as a preliminary to would be the officers of any city governmaking an appointment like the above: ment in one of the States of the Union Held, That T. was legally appointed on from the civil service of the State itself. April 29; that his appointment was The civil-service act of January 16, 1883, complete on that date, although he did can not lawfully be applied to the officers not qualify by taking the oath of office and employees of the District of Columbia. until afterwards, and that no examina- (22 Op. A. G., 59.) tion under the civil-service rules was required in his case. (19 Op. A. G., 410. See also 21 Op. A. G., 140.) Appointments-Statutory construction.— When a general law prescribes what persons may be appointed to any class or kind of office or place, the time or manner of their appointment, the tenure of their office, their qualifications or the test of their qualifications and fitness, any appointment of the kind thereafter authorized must, unless otherwise provided, be made with reference to and in conformity with the requirements of such general law. In every statute authorizing or requiring a certain act there is implied, as if there written, the direction that such act shall be done with reference to and in conformity with existing laws on the subject. (25 Op. A. G., 341.) Army officer detailed for duty in clerical position not member of classified service.An army officer detailed for duty in a clerical position can not be considered as a member of the "classified service," and after separation therefrom can not be reinstated therein under Rule IX, by reason of his service during the war. (22 Op. A. G., 6.) District of Columbia government not affected by civil-service act.—The officers and employees of the District of Columbia are not officers and employees of the General Government of the United States, but of the municipal corporation known Deputy collectors of internal revenueClassified service-Appointment.-Deputy collectors of internal revenue would seem to be officers of the United States, at least in the sense that they are subject to classification under the civil-service law; but if not officers, they are employees of the United States, and, considered as either, the President has the right to include them in the competitive classified service. Deputy collectors of internal revenue can not be considered employees of the collector. Congress may place any restrictions it pleases upon the employment, by officers of the United States, of any kind of servants to assist them in the discharge of their duties. Congress undoubtedly intended that the provisions of the civil-service law, so far as these provided for the organization of a classified service, should be extended to all persons engaged in the legitimate civil work of the executive branch of the Government, whether such persons were or were not technically in the employ of the United States. A newly appointed collector of internal revenue has a legal right, upon taking office, to drop from the service any deputy collector in commission and to appoint deputies of his own selection in accordance with the rules of the Civil Service Commission. (26 Op. A. G., 363.) "required. 2. No person shall be appointed, employed, promoted, Examination or transferred in the classified service, or perform the Act, sec. 7. duties of any position therein, until he passes an examination in conformity with these rules, unless specially exempted thereunder. When emergencies require the assignment of unclassified laborers to classified work for brief periods, authority therefor may be secured upon a statement of the facts to the Commission if it appears impracticable to make temporary appointment from the eligible registers. No such Appointments assignments should be made without such authority, and each such assignment should be reported in detail upon the monthly report of changes. See executive order April 21, 1909, page 118, Twenty-sixth Report. 3. Appointments to the excepted positions named in Schedule A of these rules may be made without examination or upon noncompetitive examination; but the proper appointing officer may fill an excepted position as competitive positions are filled, in which case the person appointed will receive all the rights of a competitive employee. A person appointed to an excepted place must perform the legitimate duties of that and of no other place, unless the duties of the other place are performed in addition to and not in lieu of the duties of the excepted place. All excepted positions are within the classified service, and no removal may be made therefrom for political reasons. Clerks to United States attorneys.Employment in the classified service is to be secured through competitive examination, and not otherwise, in all cases not expressly excepted from the operation of the general rule; and it is in no case to be considered that a position is excepted unless the language relied upon to establish the exception is so Assignment of excepted employees. Assignment of laborers. plain and unequivocal as to admit of no doubt. Clerks of the several United States attorneys, with the exception of the one in each office mentioned in clause 2 of Section IV of Schedule A, must be chosen through examination and certification, as provided with respect to other employees of the classified civil service. It would be wholly unnecessary to exclude one clerk for each United States attorney from the competitive class if all the employees of such attorneys were among those exempted. The maxim expressio unius est exclusio alterius applies with obvious and irresistible force to the construction of this clause. (27 Op. A. G., 95.) 4. A person appointed without competitive examination under section 3 of this rule shall not be assigned to the work of a competitive position without the approval of the Commission. 5. Laborers who, in connection with their usual duties, are to perform work of the grade performed by classified employees, shall be appointed upon certification by the Commission from appropriate registers of eligibles in the manner provided by these rules; and a person employed merely as a laborer or workman without examination under these rules shall not be assigned to work of the grade performed by classified employees. a See page 58. When the principal duties pertaining to a position are of the sort performed by classified employees, the position, by virtue of that fact alone, should be treated as classified. employees, except in accordance with the provisions of the civil-service rules; and before making any appointment or employment for service with respect to which there may be reasonable doubt as See summary of the Labor Regulations, to the requirement of examination the page 67. The President issued the following order for the purpose of preventing improper appointments, including the appointment of laborers without examination to do classified work: head of the department or office shall confer with the Civil Service Commission for the purpose of determining whether examination is required, and when such conference does not result in agreement the case shall be presented to the Attorney-General for his opinion." (Executive order, Nov. 29, 1904. See also executive order, April 21, 1909, page 118, Twenty-sixth Report.) employees in becoming "No person shall be appointed or employed in any executive department or office for the performance of any service of the character performed by classified 6. A person holding a position when it becomes classi- Status of fied and subject to competitive examination shall have all positions the rights which he would acquire if appointed thereto classified. upon examination under these rules, except that he shall not be transferred without first passing the examination provided by the Commission; and no person who has been appointed in any post-office within three months prior to the classification thereof shall be transferred to a position of carrier within six months after such classification. The provision of this section requiring examination before the transfer of a person who entered the service by classification will be construed as not applying to those transfer cases where the certificate of the Commission is not required, nor to retransfers. authorized the Commission to waive requirements for examination and to substitute such other tests of fitness as it might decide, in certain cases where transfers or promotions are properly applied for and otherwise permissible and the waiving of examination is for the good of the Executive order of November 22, 1907, service. 7. On the date of the establishment of the free-delivery Establishment of system in any post-office, these rules shall apply to its officers and employees in the same manner as they apply to those in existing free-delivery offices, and the Postmaster-General shall promptly notify the Commission of all orders for such establishment: Provided, however, That, without the express consent of the Commission, no officer or employee in any such post-office shall be classified under the terms of this section if he has been appointed within less than sixty days of the establishment of the free-delivery system therein: And provided further, That appointments in such office after an eligible register has been established shall be made by regular selection from the register. Consolidation of post-offices. Indian agent, classification of. Retired army officers may be appointed superintendents of Indian schools. Amendment, Mar. 3, 1905. Competitive 8. Whenever a post-office is consolidated with one which has city free delivery, any regularly appointed officer or employee of the office discontinued, if he has actually served continuously therein during the sixty days next preceding such consolidation, or if he was appointed through competitive examination, may become a classified employee of the other office. 9. Whenever the separate office of Indian agent shall be discontinued in any agency, and his duties devolved upon the superintendent of the training school, the agent may be made a classified employee at such school or agency upon such test of fitness as may be determined upon by the Secretary of the Interior and the Commission. 10. A retired army officer may be appointed as superintendent of an Indian school without competitive examination, upon the request of the Commissioner of Indian Affairs, with the approval of the Secretary of the Interior, setting forth that such officer has the required educational and business qualifications for such position, and accompanied by the authenticated military record of said officer. The Commission will then issue the necessary certificate. RULE III.-EXAMINATIONS. 1. The Commission shall prepare and hold open competitive examinations for admission to the classified service, which examinations shall be of a practical and suitable character, and shall be held at such times and places as may most nearly meet the convenience of applicants and the needs of the service. Can a court require, on subpœna, the production of any application or examination papers or other records of the boards of civil-service examiners?-1. The general power of appointment to office being in the President, qualified only by the right of Congress to vest the appointment of inferior officers in him, in the courts of law, or in the heads of departments, the Civil Service Commission is to be regarded as an advisory board subordinate to the President, reporting to him, and clothed with the functions of aiding the President or any head of department in the exercise of the appointing power. 2. The boards of civil-service examiners are selected by the Civil Service Commission, and, though subordinate 3. The application and examination 4. Being records and papers of the character described, their production can not be compelled by the courts whenever the general public interests must be deemed paramount to the interests of private suitors. 5. When such general public interest forbids the production of an official record or paper in the courts, and for the purposes of the administration of justice, is a question not for the judge presiding at the trial in aid of which the record or paper is sought, but for the President or head of department having the legal custody of such record or paper. And such question may be determined either as and when arising in each particular case, and upon its own peculiar facts and merits, or in advance, by general rules applicable to all records and papers, or by special rules applicable to special classes of records or papers. (20 Op. A. G., 557.) Official records can not be compelled as evidence without express authority of law.The records of the executive departments are quasi confidential in their nature, and should be classed as privileged communications which can not be compelled by a court as evidence without express authority of law. (25 Op. A. G., 326.) Examination papers are confidential and are not to be inspected by any person, except, in the presence of a representative of the Commission, by the competitor himself or a representative of the competitor who has authority in writing approved by the Commission; by an appointing officer for official purposes and by persons duly authorized by court process. petitive ex 2. Where, in its opinion, the conditions of good admin- Noncomistration warrant, the Commission may give noncompeti- aminations. tive examinations to test fitness for (a) transfer, reinstatement, or promotion; and (b) appointment to the Amendment of positions named in Schedule Ba of these rules. Mar. 23, 1910. the head of the department or office in which the person seeks service. mechanics, etc., under ment. Examinations permitted under this section are given only upon request of 3. All persons at navy-yards, naval stations, and at Special private shipbuilding and manufacturing establishments draftsmen, where work is done by contract for the Navy Depart- Navy Department, employed as special mechanics and civilian assistant inspectors of work and material, and all persons employed under the Navy Department as draftsmen, will be subject to the regulations of the Navy Department governing the employment of labor at navy-yards. Appointments to these positions shall be made on tests of fitness prescribed in paragraphs 74 to 83, inclusive, of Navy-Yard Order No. 23, revised. Civilian employees at navy-yards, other than laborers or workmen, are included within the classified service and are not exempted from competitive examination by the terms of Schedule A of the civil-service rules. (Op. A. G., Feb. 18, 1909.) See note to Rule XVI. RULE IV.-BOARDS OF EXAMINERS. and duties. 1. The Commission shall designate from among persons Appointment in the federal service, after consulting the head of the Act, sec. 3. department or office in which such persons serve, such boards of examiners as it may deem necessary. Their members shall perform such duties as the Commission a For positions in Schedule B see page 63. |