was overlooked and he was duly certified and appointed as junior lock fitter in the mail bag repair shop, Post Office Department. The fact that he was not eligible on account of the disability under section 9 of the civil service act was not discovered in this office until receipt of Mr. Mostyn's declaration made in the usual form when he entered upon duty.

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"The Post Office Department was requested to remove Mr. Mostyn but it was also advised that in the event of refusal to do so the matter might be submitted to the Attorney General for opinion. The Department in letter of May 24 stated that Mr. Mostyn had given complete satisfaction and in view of the difficulty the Department has experienced in securing suitable eligibles for the position of junior lock fitter it is not believed to be in the interest of the service to drop him from the rolls unless, in the opinion of the Attorney General, such action is deemed necessary."

The commission desires to be advised whether the case presented is controlled by the opinions of Attorney General Harmon, reported in 21 Op. 289 and 335; and if not, whether Mr. Mostyn's appointment is illegal and he should be removed.

In the first opinion it was held that an irregularity in the certification of the name of an eligible for appointment in the civil service was cured by the probational and absolute appointment of such person. The irregularity in that case consisted in the certification of the name of a person who was sixth on the eligible list, such certification being contrary to the civil service rules. In his opinion Mr. Harmon said (21 Op. 290–291):

"There must be some point of time when the mere irregularities in certification must be regarded as cured. The civil service rules have no greater dignity than the law which authorizes them, and it would be highly unreasonable that persons who have left other employments should be ousted from positions which they are satisfactorily filling simply because it is discovered that employees

of the Civil Service Commission have made mistakes in their certifications. To hold that the irregularity in the present case has been cured by the probational and absolute appointments of Mr. Moore and by his long service is in line with the decisions of the courts upon cognate questions, and with the opinion of Attorney General Miller in 20 Opinions, 274, in which it was held that an appointment made contrary to the rule of apportionment enjoined by the statute should not be disturbed because the violation of the rule had been due to mere inadvertence, though the fault was that of the appointee in failing to give notice of a change of residence which occurred between his examination and his appointment. I therefore answer that the appointment should now be considered conclusive."

In the other opinion referred to, Mr. Harmon held that the certificate of eligibles delivered to the appointing officer by the subordinates of the Civil Service Commission was complete authority to such officer and complete protection to the appointee. That case was also one of the certification of a person whose position on the eligible list did not entitle him thereto, and in deciding it Mr. Harmon said (21 Op. 335–336):

"This case is similar to that of Frank C. Moore, discussed in my opinion of January 9, 1896, except that in Moore's case the irregularity was not discovered until he had served over six months and received an absolute as well as probationary appointment. In my opinion, however, this distinction is not material. The appointing officer must necessarily place absolute reliance upon the certificate received by him from the board of examiners. The appointment is usually made promptly, and the appointee often gives up other employment so that it would be a great injustice to him to be thrown out of his new place in the Government service on account of a mistake made by some subordinate of the Civil Service Commission.

"I think that the regularity of the steps taken by the Civil Service Commission is not jurisdictional; and that. while the subordinates of that commission are subject to discipline for such misfeasances as occurred in the present

case, nevertheless the certificate which they deliver to the appointing officer is a complete authority to the latter and a complete protection to the appointee.

"Answering the first question submitted, therefore, it is my opinion that Baggott's appointment was legal. This disposes also of the second question.

"Answering the third question, as to whether there is any law or rule which will be effective in preventing a board from securing the appointment of a person who is ineligible or who has never been examined by simply entering his name on the certificate,' I know of no method except the selection of competent and careful boards of examiners. Doubtless every effort to this end has been made by the Civil Service Commission; and this case, therefore, must be classed among the mistakes that occasionally and unavoidably occur in all business affairs.

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The Civil Service Commission calls attention to the fact that the case now under consideration differs from those in the opinions just cited in that the inadvertent certification of Mostyn's name was contrary to the civil service act, and not simply to a rule promulgated thereunder. In my opinion this is immaterial. The rules promulgated by the President under the authority of the civil service act have the force of law, and, while they may be waived by the President himself, can not be disregarded by the commission or the head of a department any more than a provision of the statute itself.

The provision in question declares that a person shall be ineligible for appointment to any of the grades covered by the act if there are already two or more members of his family in the public service in those grades; but it does not declare that the appointment of such a person shall be void and of no effect.

Under the civil service act and rules, the head of a department is required to accept the determination of the Civil Service Commission as to eligibility of an applicant for appointment (28 Op. 393-394). If the commission makes a mistake in its certification, it is, of course, within its power to correct it before appointment; but after an

appointment is made by the head of a department and is accepted by the appointee, without and fraud on his part or concealment of material facts, I think it is too late for the commission to attempt to correct its certification.

The rule, of course, would be otherwise if the matter involved were jurisdictional; but I agree with Attorney General Harmon that "the regularity of the steps taken by the Civil Service Commission is not jurisdictional." (See Noble v. Union River Logging Railroad, 147 U. S. 165, 173-174.)

Respectfully,

To the PRESIDENT.

J. C. McREYNOLDS.

NATIONAL BANKS-MEANING OF WORD “PLACE.”

The word "place," as used in section 5138 of the Revised Statutes, relating to the capitalization of national banks, means a corporate or quasicorporate body organized for the purpose of local government in a defined territory.

DEPARTMENT OF JUSTICE,

June 6, 1913.

SIR: I have the honor to acknowledge the receipt of your letter of March 25 last, requesting an opinion as to the meaning of the word "place" in section 5138 of the Revised Statutes relating to the capitalization of national banks.

The occasion is a request for your permission to organize a banking association with a capital of $50,000, to do business in Logan Square, a locality within the limits of the corporate city of Chicago, but about 9 miles removed from its business district and large center of population.

The answer to your question turns entirely upon the proper construction of sections 6 and 7 of the act of June 3, 1864 (13 Stat. 99, 101), section 5138, Revised Statutes, being the same, in so far as the point involved is concerned, as section 7 of the act of June 3, 1864.

Section 6 of the said act requires an organization certificate for national banks which shall specify "the place

where the operations of discount and deposit are to be carried on, designating the State, Territory, or district, and also the particular county and city, town or village.

Section 7 of the said act provides that no association shall be organized with a less capital than $100,000,"nor in a city whose population exceeds fifty thousand persons, with a less capital than two hundred thousand dollars; provided that banks with a capital of not less than fifty thousand dollars may, with the approval of the Secretary of the Treasury, be organized in any place the population of which does not exceed six thousand inhabitants."

It is quite evident that the "place" referred to in section 7 is the same "place" referred to in section 6, and by the settled rule of statutory construction must have the same meaning. It is equally certain that the “place” in section 6 must be a "city, town, or village." The language can have no other meaning. If "place" can mean something other than "city, town, or village," then, of course, it would be impossible to make the designation required.

It follows that "place" in section 7 must mean "city, town, or village," and, in order to establish a bank with $50,000 capital, it must be established in a "city, town, or village "the population of which does not exceed six thousand inhabitants."

The words "city, town, or village" can have no other legal meaning (except possibly in very anomalous cases), than a corporate or quasicorporate body organized for the purpose of local government in a defined territory. This was the established meaning of these words at the time. the act of 1864 was passed, and is their meaning to-day. It is well understood that the State, itself a governmental corporation, subdivided itself into counties, and in some cases. townships, or hundreds, which latter were quasicorporations exercising a portion of the governmental authority of the State, while, where population became too dense for this form of government, villages, towns, and cities were organized, and they were organized essentially as corporations, to conduct, as such, the local government of