tinue the incumbents in office beyond the expiration of the term for which they were employed without a reappointment, recommission, or reemployment by the incoming marshal.

Mr. Murray was not reappointed nor recommissioned by Marshal Martin, nor did the new marshal consent to his continued employment. It is not shown that services were demanded from him by the new marshal, nor that they were voluntarily accepted by the marshal after October 3, 1910. Under these circumstances he is not entitled to the salary of the office after October 3, unless he has been subsequently reappointed under the provisions of section 10, act of 1896, which reads:

"That when in the opinion of the Attorney General the public interest requires it, he may, on the recommendation of the marshal, which recommendation shall state the facts as distinguished from conclusions, showing necessity for the same, allow the marshals to employ necessary office deputies and clerical assistance, upon salaries to be fixed by the Attorney General, from time to time, and paid as hereinafter provided. When any of such office deputies is engaged in the service or attempted service of any writ. process, subpoena, or other order of the court, or when necessarily absent from the place of his regular employment, on official business, he shall be allowed his actual traveling expenses only,. and his necessary and actual expenses for lodging and subsistence, not to exceed $2 per day, and the necessary actual expenses in transporting prisoners, including necessary guard hire; and he shall make and render accounts thereof as hereinafter provided—”

Or continued under his former employment. (See 4 Comp. Dec., 523; 12 Comp. Dec., 766, and decision of May 23, 1910, 53 MS. Comp. Dec, 948.)

You are therefore not authorized to pay Mr. Murray the salary of the position of office deputy marshal subsequent to October 3, 1910, when the term of the marshal who appointed him expired.

Respectfully,

R. J. TRACEWELL,
Comptroller.

A RETIRED OFFICER MAY HOLD A CIVIL OFFICE, ALTHOUGH IT PAYS $2,500 OR MORE

PER ANNUM.

The Comptroller of the Treasury on September 26, 1910, rendered a decision upon a case presented by the Secretary of the Treasury, in which was involved the question of the legality of the employment of a. retired officer as cashier in a Subtreasury at a salary of $2,500 per annum, the officer to continue to receive his retired pay of $1,980 per annum. The comptroller ruled that there is no legal objection to paying the retired officer his salary as an employee or officer of the Subtreasury, for there is no incompatibility in the two places, he at the same time receiving his pension as a retired officer. This decision of the comptroller is based upon that in the case of Geddes v. United States (38 C. Cls., 428) in which the majority of the court held that the pay of a retired officer is not compensation but an honorary form of pension. The comptroller, however, states that he has never agreed with the reasoning of the majority of the court in the Geddes case, but that he is bound by it as a precedent, and until it is reversed he feels under obligations to follow it.

PAYMENT FOR TIME SPENT IN TESTIFYING BEFORE COMMISSION.

The secretary of the third civil-service district, having been directed by the commission to conduct an investigation into the activities of the Philadelphia Branch of the Civil Service Retirement Association, summoned before him, for the purpose of testifying upon the subject-matter of the investigation, one Herbert Gillingham, a screw maker in the Frankford Arsenal, who appeared to be vice president of the local branch of the Civil Service Retirement Association. Mr. Gillingham's pay for the time spent by him in going to the district secretary's office, giving his testimony, and returning to duty at the arsenal, which amounted in all to 3 hours, was refused by the Ordnance Department, and the commission on June 19, 1911, brought the matter to the attention of the Secretary of War and requested that favorable consideration be given to Mr. Gillingham's claim for pay for the time he was absent from duty on the date specified, civil-service Rule XIV imposing upon every officer and employee of the executive civil service the duty of testifying, which duty could not be evaded without incurring the penalty of some administrative discipline. The Acting Judge Advocate General of the War Department, to whom the matter was referred by the Secretary of War, stated that "as the duty performed by Mr. Gillingham had no

relation to his service as an employee of the Frankford Arsenal or the Ordnance Department, such duty could not be construed as incidental and necessary to the Ordnance Service, and that the appropriations covering his employment, as specified, were not applicable to his payment while on such duty.”

The Acting Judge Advocate General also held that it did not appear in the present case that the investigation was for the benefit of the War Department, and therefore that Mr. Gillingham could not properly be paid from the appropriation "Contingent expenses, War Department."

Upon receipt of this opinion the commission on August 3, 1911, requested the Secretary of War to reconsider the case and suggested two points of considerable moment to the commission, the first being the holding of the Acting Judge Advocate General that the investigation in which Mr. Gillingham appeared was not for the benefit of the War Department. The commission stated that the whole of the investigation conducted at Philadelphia was conducted for the benefit of the War Department and others, and to prevent civil-service employees from violation of the law and rules and orders of the President in their political conduct. The second point was that under civil-service Rule XIV it was the unavoidable duty of Mr. Gillingham to appear when summoned by the commission, so that he had no option in the premises, and his time was engaged lawfully in and about the duties of his position under the said rule the same as though under a time order in his working department.

The Secretary of War referred the matter to the office of the Comptroller of the Treasury, and in a decision dated August 17, 1911, the following conclusion was reached:

In 17 Comp. Dec., 584, it was held, quoting the syllabus as follows: "Government employees, who, in obedience to a subpoena or an order issued by competent authority appear as witnesses for the Government, are entitled under section 850 of the Revised Statutes to their necessary expenses in going, returning, and attendance on the court, and also to their regular compensation as such employees while going, returning, and in attendance on the court, but such employees are not entitled to mileage or other fees and compensation as such witnesses.

66

Such employees in going, returning, and attending on the court should be treated as in a duty status and as in the performance of duty under their employment, and should be paid accordingly and in addition to said expenses." (See also 5 Comp. Dec., 797; 9 id., 276.)

The same principle applies in the case at hand, and upon the facts appearing, Mr. Gillingham should be treated as in a duty status and as in the performance of duty under his employment in going, returning, and attending on the commission, and should be paid the pay due him for such time from the appropriation for the Ordnance Service governing his employment.

MEMORANDUM IN RE CONTRACTS INVOLVING PERSONAL SERVICES.

Section 3709, Revised Statutes, provides:

All purchases and contracts for supplies or services, in any of the departments of the Government, except for "personal services," shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles, or performance of the service. When immediate delivery or performance is required by the public exigency, the articles of service required may be procured by open purchase or contract at the places and in the manner in which such articles are usually bought and sold, or such services engaged, between individuals.

In an opinion of June 20, 1896 (Decisions of the Comptroller, vol. 2, p. 632), the question of "personal services" is considered in connection with the following statement of facts by the Postmaster General:

On October 1, 1893, a repair shop was opened at the Baltimore city post office, by authority of the Postmaster General, and W. H. Coram placed in charge, with compensation fixed as follows: For receiving, assorting, and reshipping, 12 cents per satchel when reshipped; for repairing satchels, 20 cents each-a total of 32 cents per satchel reissued.

In deciding whether the services of W. H. Coram were "personal services" within the meaning of section 3709, the comptroller said:

Under the statements made

*

* it is clear that W. H. Coram is an

employee of the Post Office Department whose compensation is fixed by piece.

instead of by time, and therefore the payments are for "personal services " specially exempt from advertisement and contract by section 3709. His case clearly comes within Attorney General Devens's definition of "personal services," in 15 Opinions Attorney General, 235–243.

Briefly the definition given to "personal services" by Attorney General Devens, is as follows:

A contract for personal services is one by which the individual contracted with renders his personal service to the Government through its agents, thus himself becoming the servant of the Government.

This opinion was rendered by the Attorney General in connection with the question as to whether or not the cutting and dressing of certain stone that had not been made the subject of formal contract could be considered as "personal services" within the meaning of section 3709. The Attorney General decided, as indicated above, that it could not. (It may be stated, however, that the contract concerning which this question arose was not avoided on these grounds, the Attorney General holding that the contract was not obligatory upon the United States, in certain respects, upon other grounds.) The Attorney General said, further, with reference to this:

His (the contractor's) performance of his contract was not a personal service, and the workmen employed by him were not in any sense personal servants to the Government. They rendered no service to it; they were under the control of none of its officers, and did no work for it. The aid which they rendered the contractor * * * was, perhaps, personal service to him * * * but was not a personal service to the Government.

Chief Justice Marshall has said:

Although an office is “an employment," it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or perform a service without becoming an officer. (U. S. v. Maurice, 2 Brock., 96, 103.)

There would thus seem to be ample authority for considering a person who contracts with the Government to perform personal services as an employee of the Government.

**

Under section 1 of civil-service Rule II the classified service is made to include all officers and employees in the executive civil service of the United States * * of whatever function or designation, whether compensated by a fixed salary or otherwise except persons employed as laborers and persons whose appointments are confirmed by the Senate.

It would thus appear that a contract (with any department of the Government) that does not involve personal services must be entered into in accordance with the provision of section 3709, Revised Statutes, and if it does involve personal services, in accordance with the civil-service rules.

CONSTITUTIONALITY OF WISCONSIN STATE CIVIL-SERVICE LAW.

The Supreme Court of the State of Wisconsin, in the case of State ex rel. C. E. Buell v. James A. Frear, Secretary of State, upheld the constitutionality of the civil-service law of that State. The opinion in the case was rendered by Justice Siebecker, who entered into a detailed discussion of the points involved. It was held that the law in requiring appointments and promotions to be made according to merit and fitness, ascertained as far as practicable by competitive examination, declared the purpose of the legislature to change the previously existing practice and remedy existing evils. It was pointed out that the former system, largely disregarding skill and fitness, produced many obnoxious features and a deplorable state of inefficiency, the uncertainty of tenure also demoralizing the public service. The various provisions of the act were held to be well calculated to carry out the legislative object to remedy these conditions.

The court held that the contention that the act abridged the privileges and immunities of the citizens of the State by permitting arbitrary and unlawful discrimination between classes as regards the right to enter and continue in the public service was based on the ill-founded idea that any citizen is guaranteed the unqualified right to enter the public service regardless of his skill and fitness. The opinion states that the privilege of holding a public office is not a natural and inalienable right, but a privilege extended upon such condi

tions as the people in their sovereign capacity may determine, public offices being agencies created for the benefit of the public and not the incumbent. The opinion quotes from a prior decision holding that eligibility to constitutional offices and public trusts is in the nature of a constitutional right, but that a mere statutory office which the legislature may create or abolish at will, being omitted from specific constitutional regulation, is subject to the discretion of the legislature, which can make such rules as it deems proper. It is pointed out that in our system of government no official power is vested in any of the individuals composing the State and such power can only be exercised when bestowed by the people through their governmental agencies in parceling out its official functions. This conception implies that its functions are to be administered by individuals who possess the necessary qualifications, which the State must be able to ascertain. When this is not done directly through constitutional provision, it devolves upon the legislature to prescribe appropriate regulations. It is held, therefore, that the act providing for appointment on merit and fitness constitutes an appropriate exercise of legislative power to the purposes intended, and is not invalid as discriminating in the matter of equal rights of all citizens to hold office.

The opinion then takes up the contention that the act is invalid as depriving the appointing officer of the right to employ a reasonable discretion by prohibiting any appointment except in accordance with the act and rules and regulations prescribed thereunder. It is held that the provision for a selection from three candidates standing highest on the eligible list gives sufficient scope for an exercise of reasonable discretion. The tests, according to the act, are to be practical in their nature and appropriate for ascertaining the fitness and skill of the applicant, imposing no unreasonable restrictions on the appointing officer in the exercise of his power and clearly serving to aid him in selecting competent servants.

On the contention that the commission was granted arbitrary power to extend the exempt class the ruling is that the power given to the commission to place offices in that class which they find it impracticable to fill through examination means that the commission is to investigate and find whether, as a matter of fact, merit and fitness can be ascertained by examination, and all positions which can be so filled must be filled by the test prescribed by the law, the question, therefore, being one of fact to be determined by the commission.

The opinion holds that the law is not unconstitutional as an attempt to delegate legislative power to the commission, the distinction between legislative and administrative power being shown. The delegation of power to make the law necessarily involves a discretion as to what it shall be, but an administrative power confers authority or discretion to be exercised under and in pursuance of the law. The argument had been made that the provisions of the act empowering the commission to prescribe and amend rules and put them into effect, to classify offices, to determine examinations, and suspend the requirement of examination upon evidence of peculiar qualifications of specified kinds, confer legislative power on the commission in that they are thereby authorized to create penal offenses, make general legal rules, classify the public service, and suspend the operation of the statutes. The opinion holds, however, that the legislature provided a complete classification and specified what offices were within the classified civil service and into what groups or classes the service was divided, merely imposing the duty upon the commission of arranging the existing offices and places pursuant to such classification. This power, therefore, was merely one of administrative action to make concrete application of the legislative classification and put into effect the general rules, the commission being directed to ascertain the facts and to apply the rules of law thereto under prescribed terms and conditions.

The power to make rules conferred on the commission also was held not to be an exercise of legislative power, the act declaring that the rules to be prescribed and enforced are such as are necessary for the purpose of carrying into effect the purposes of the act, no provision directly or by implication authorizing. any rule to be made that could add to or in any way alter or amend the regulations made by law

The opinion finally declares that the act makes provision for a complete general scheme and is an appropriate exercise of the legislative function to regulate the civil service of the State, the validity of any of the minor provisions which may be challenged on occasion when actual controversies arise not being able to affect the constitutionality of the act as a whole.

23175°-12-9

OPINION OF LAW COMMITTEE, NATIONAL CIVIL-SERVICE REFORM

LEAGUE.

VALIDITY OF THE CIVIL-SERVICE REGULATIONS WHICH HAVE BEEN ESTABLISHED IN PORTO RICO.

We have carefully considered the opinion of the attorney general of Porto Rico with reference to the validity of the civil-service regulations which have been established by the Legislature of Porto Rico. We can not concur in the conclusions at which he has arrived.

Experience has shown that to provide by law for the appointment of examiners who shall investigate the qualifications of candidates and to require their report to be submitted in such form that it can be placed before the appointing power, and to require further that appointments shall be made from those ranked highest as the result of the examination, tends to promote the efficiency of the service and to furnish most effectual aid to the appointing

power.

All the objections to this scheme taken by the attorney general were taken by the opponents of the merit system 30 years ago. Experience has shown that they are not well founded in point of fact. We must be permitted to say that it seems preposterous at this date that an officer appointed by the United States Government should claim that the merit system is unconstitutional or, what is the same thing so far as the Territory is concerned, in violation of the organic act of that island.

The United States civil-service act became a law January 16, 1883. This law regulates the exercise of the appointing power by the President of the United States in precisely the same manner as the act of the Legislature of Porto Rico. The Constitution of the United States, article 2, section 2, confers upon the President the power of appointment. The same reasons which are urged by the attorney general of Porto Rico against the civil-service system of that island would equally apply to the provisions of the United States statute providing the method by which the President and the heads of the departments shall ascertain the qualifications of candidates for the various offices to be filled by them. The fundamental principle which should regulate the decision of such cases was laid down by the Supreme Court of the United States in matter of Curtis (106 U. S., 371). It was there held, following the decision in the leading case of McCulloch v. Maryland (4 Wheat., 316 (421): "We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate; let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."

To use the language of the Court of Appeals of the State of New York: "The exercise of a legislative power will be presumed constitutional under the general grant of power, and will be sustained unless brought clearly within some of the exceptions." Matter Gilbert Elev. R. R. Co. (70 N. Y., 361); People v. Dayton (55 N. Y., 380).

The attorney general cites three decisions in the State of New York which appear to him to sustain his contention :

The first of these cases, People v. Angle (109 N. Y., 564), was an exceptional case, decided solely upon the historical conditions attendant upon the adoption of a particular amendment to the constitution of the State of New York. The court held that the object of the people in adopting that amendment was to give to the superintendent of canals absolute control over the construction of canals and to exempt him entirely from the control of the legislature. But, on the other hand, the same court in the case of Rogers v. Common Council of Buffalo (123 N. Y., 173) held the civil-service act of the State of New York to be constitutional so far as it applied to appointments by all other officers of the State government. This case is subsequent to the Angle case, and if the two are inconsistent the latter must be considered as overruling the former. But there is no real inconsistency when the ground of the decision in the Angle case is carefully considered.