their country and serving in army thereof, and having no property or apparent ties in United States, did not prove continuous seven years' domicile, so that carrier, bringing them in after more than six months' absence, was subject to fines. (Id.)

Congressional Joint Resolution, authorizing excludable aliens, serving in allied armies after previous residence in United States, to apply for admission within year after end of war and to come in within two years, did not authorize second entry by one leaving country after returning within such time. (Cosulich Societa Triestina Di Navigazione v. Elting (C. C. A.) 66 F. (2d) 534.)

Illiterate aliens, continuously residing in country for five years before leaving may be absent for less than six months without losing privilege of re-entry. (Navigazione Generale Italiana v. Elting (C. C. A.) 66 F. (2d) 537, cert. den. 54 S. Ct. 126, 290 U. S. 691, 78 L. Ed. 595.)

1032. Alien World War veteran defined.

NOTES OF DECISIONS

Alien held shown to have been discharged from army because of alienage and hence not within definition of "alien veteran"; the evidence being insufficient to rebut statement to that effect in service record. (U. 8. v. Harbanuk (C. C. A.) 62 F. (2d) 759.)

1035. Preferential transportation rate extended to alien World War veterans, wives, and children entering U. S.-[Obsolete.]

The editors, U. S. C., consider this section obsolete.

By Executive Order June 10, 1933, No. 6166, section 12, (set out in 5 U. S. C. 132, note) the functions of the United States Shipping Board, including those over and in respect to the United States Shipping Board Merchant Fleet Corporation, were transferred to the Department of Commerce, and the United States Shipping Board was abolished.

By sec. 204 (a), Act of June 29, 1936, c. 858, Title II, 49 Stat. 1987 (46 U. S. C. 1114), all the functions, powers, and duties vested in the former United States Shipping Board, which were vested in the Department of Commerce pursuant to the afore said Executive Order of June 10, 1933, were transferred to the United States Maritime Commission.

1040. Married woman whose husband is nativeborn citizen and World War veteran not to be excluded. [Repealed.]

This section (Act Sept. 22, 1922, c. 411, s. 8, as added Act July 3, 1930, c. 826, 46 Stat. 849) was repealed by Act May 24, 1934, c. 344, s. 5, 48 Stat. 798.

Sec.

1043.1 Same; in U. S. Employment Service. [New.]

1041. Appointment preference to honorably discharged soldiers, sailors, and marines, and their wives and widows.

NOTES OF DECISIONS

Nature of service and discharge required.-The person upon whose service the claim for preference is based must have been a soldier, sailor, or marine. An honorable discharge from the military or naval service or from the Coast Guard, an ordinary or inaptitude discharge from the Navy, an inaptitude or unfitness discharge from the Marine Corps, or an ordinary or inaptitude discharge from the Coast Guard where such service was honorable is necessary to secure preference. (U. S. Civil Service Commission Form 1481, May 1936, par. 6.)

Persons granted preference.-The statutory provision is not limited to veterans of the World War but applies to all honorably discharged soldiers, sailors, and marines, including commissioned officers. Preference may be granted to the following special classes of persons: Army field clerks.

Army Transport Service officers assigned as transport quartermasters.

Cadets, U. S. Military Academy (also Coast Guard cadets). Chaplains: Honorably discharged chaplains who were on duty with military organizations.

Coast Guard: Persons who served in the U. S. Coast Guard after January 28, 1915, and Coast Guard cadets.

Draft: Persons who were discharged from the draft under honorable conditions.

Hospitals (base) overseas: Women citizens of the United States who served in base hospitals overseas, after having been sent there by the United States Government.

Lighthouse Service: Members of the Lighthouse Service who were transferred to the jurisdiction of the Navy Department during the World War and were separated therefrom under honorable conditions. Midshipmen.

National Guard: Members of the National Guard who were mustered into the Federal Service and were honorably discharged therefrom.

Nurses Army and Navy nurses, including all women who served honorably under contract between April 21, 1898, and February 2, 1901, as nurses, chief nurses, or superintendents of the Army Nurse Corps.

Officers who resigned from the Army, Navy, Marine Corps, or Coast Guard under honorable conditions.

Pay clerks, paymasters' clerks, and captains' clerks who served with paymasters or captains on board ship.

Philippine scouts.

Reserve Corps: Officers and men in the Reserve Corps who were on active duty other than for the purpose of training.

Reserves, Army: Men furloughed to the Army Reserves. Reservists, naval and marine: Naval and marine reservists who hold certificates of honorable discharge or release from active service. Retired soldiers, sailors and marines.

Revenue-cutter Service: Enlisted men and officers of the Revenuecutter Service who served during the period from March 24, 1898, to August 17, 1898, and were subsequently honorably discharged.

Student Army Training Corps: Persons who served in the Student Army Training Corps.

Surgeons, contract: Contract surgeons who were in the service after June 3, 1916.

Training camps: Persons who served in training camps during the World War and who were honorably discharged therefrom, although they may not have received a commission. (Id. par. 7.)

Persons not granted preference.-The preference act does not apply to (a) persons who served in civilian capacity, even though they may have accompanied the military forces, including dietitians, student nurses, reconstruction aides, and other civilians employed in the military hospitals (except women citizens of the United States who served

126824-37-16

Sec.

1053.1 Double salary restrictions; retired officers and enlisted men excepted. [New.]

in base hospitals overseas, having been sent there by the United States Government), Red Cross nurses not in Army Nurse Corps, civilian clerks, and telephone operators; (b) persons who are not within the meaning of the preference act, including members of citizens' training camps; members of Reserve Officers' Training Corps; members of National Guard or Naval Militia who were never in Federal service; members of the Army Transport Service, except commissioned officers assigned as transport quartermasters; civilians in Chemical Warfare Service; reserve corps officers and men who were never on active duty other than for the purpose of training; and (c) persons dishonorably discharged, discharged without honor, or discharged under conditions other than honorable. (Id. par. 8.)

Extent of preference.-The act of July 11, 1919, specifies that it shall apply to "appointments"; therefore the preference under the statute is confined to entrance into the Federal civil service and does not apply in examinations for promotion, or to noncompetitive examinations except those held under schedule B of the civil-service rules. In examinations for promotion or transfer a preference claimant already in the classified civil service receives no preference by reason of his military or naval service. The statute does not exempt those entitled to its benefits from examination, but they are required to earn an The average percentage of only 65 (or 60) in order to be eligible. preference does not apply to examinations for the Philippine service. (Id. par. 9.)

Where minimum rating is required in particular examination subject. In examinations where competitors are required to obtain a minimum rating of 70 in one or more subjects as a condition precedent to the consideration of other subjects, persons who are entitled to preference under the statute are not required to secure a higher rating than 65 (or 60) in such subjects. However, in any examination in which specific education, training, or experience is a prerequisite for admission to the examination, no rating will be assigned unless such requirement is fulfilled. (Id. par. 11.)

Dates of War With Spain and World War.-The war with Spain began April 21, 1898, and terminated April 11, 1899. The Philippine insurrection which grew out of that war, terminated July 4, 1902. A person in the military or naval service of the United States between April 6, 1917, and July 2, 1921, inclusive, is regarded as having been in the military or naval service during the World War, those dates representing the beginning and ending of the war between the United States and Germany as fixed by joint resolutions of Congress. (Id. par. 18.)

Method of making claim for preference.-Applicants for examination who wish to claim veteran preference must file, with their applications, preference form 14 (blue), properly executed and accompanied by the documentary proof required, which is as follows (see par. 5 (a)):

(a) Applicants claiming preference on their own service must submit one of the following: (I) Original discharge, (II) photostat or certified copy of discharge, or (III) official statement from the War or Navy Department, or from the Coast Guard, showing record of service.

(b) Applicants claiming preference for service-connected disability must furnish an official statement from the Veterans' Administration, substantiating claim of disability. Proof of service-connected disability may also be established by the official records of the War or Navy Department, or the Coast Guard.

(c) Applicants claiming preference who are over 55 years of age and because of disability, whether service-connected or not, are entitled to pension or compensation under existing laws must furnish a statement from the Veterans' Administration showing that they are entitled to pension or compensation.

(d) Wives who claim preference must furnish the evidence required in either (b) or (c) above, whichever may be appropriate, with respect to the person upon whose disability status claim to preference is based.

Note. The preference granted to wives of veterans is limited to those cases where the veteran is entitled to disability preference [(b) and (c) above] and where he is physically disqualified for exami

nations in line with the occupation, or occupations, by which he has been accustomed to earn a livelihood.

in (a) with respect to the person upon whose service claim to preference is based.

Note. The fact that marriage may have taken place subsequent to the military service of the veteran is not material inasmuch as the provision applies equally to those who were married before and to those who were married after military service was rendered. (Id. par. 22.)

Applications for quarterly examinations.-Applications for quarterly examinations may be filed at any time with the Civil Service Commission, Washington, D. C., or with one of its district managers, depending upon the particular examination desired. The Commission will admit an applicant to the next quarterly examination held for the position applied for, if there is an existing register for the position, and if the applicant meets the requirements. A partial list of positions for which eligible registers are maintained in the central office of the Civil Service Commission at Washington is given in form 2867 (Id. par. 25.)

Manner of making claim to 10-point preference.-In quarterly examinations the same method of making claim to disability, or 10-point, preference should be followed as in examinations open to general competition. (See, par. 22.) (Id. par. 26.)

Admission to examination of veterans with history of tuberculosis.— Disabled veterans entitled to 10-point preference who have a history of tuberculosis may compete in a quarterly examination held subsequent to the termination of a 1-year period following the date of the arrest of the disease. This is in accordance with the general regulation which provides that examination cannot be given to persons who have had tuberculosis, until the disease has been arrested for at least one year. The purpose is to protect the applicant himself and other Government workers. (Id. par. 27.)

No quarterly examination for Presidential postmasterships.-As the Civil Service Commission does not maintain registers of eligibles for postmasterships at first, second, and third class post offices, examinations for such positions are not included in the quarterly examination plan. Such postmasterships are not classified under the civil service law; examinations for them are held by Executive order to aid the President in the selection of nominees for confirmation by the Senate. (Id. par. 28.)

Eligibility for quarterly examinations.-Eligibility attained as the result of a quarterly examination will run for the duration of the register. It will expire with that register unless a new examination has been held, in which event it will continue on the new register for the duration of that register, provided the veteran has not had a year of eligibility on the old register. (Id. par. 29.)

Presidential postmaster preference.-Ex. O. 7421, July 20, 1936, on the subject "Procedure Relating To The Appointment of First, Second, and Third Class Postmasters" provides in Section 4 thereof as follows: "SEC. 4. In all examinations held under the provisions of Section 1 hereof, the age limit prescribed in Section 3 shall be waived as to candidates who are entitled to military preference as a result of service in the World War, the Spanish-American War, or the Philippine insurrection, and in rating the examination papers of such candidates the Civil Service Commission shall add five points to their earned ratings and make certification to the Postmaster General in accordance with their relative positions thus acquired. The time such candidates were in the service during such wars may be reckoned by the Commission in making up the required length of business experience." Five points are added to the earned ratings of each of the following classes of persons entitled to preference:

(a) Honorably discharged veterans of the wars mentioned in the Executive order of July 20, 1936.

(b) Widows of such honorably discharged veterans.

(c) Wives of such honorably discharged veterans, who themselves are physically disqualified for this examination by reason of serviceconnected disability.

(d) Wives of such honorably discharged veterans, who themselves are over 55 years of age and because of disability, whether serviceconnected or not, are by law entitled to pension or compensation. NOTE.-Persons claiming preference must obtain form 14, fill it out and submit it with their applications. (Id. par. 41.)

1043.1. Same; in U. S. Employment Service. The Secretary of Labor is authorized, without regard to the civil service laws, to appoint and, without regard to the Classification Act of 1923, as amended, to fix the compensation of one or more assistant directors and such other officers, employees, and assistants, and to

and elsewhere and for law books, books of reference, and periodicals) as may be necessary to carry out the provisions of this Act. In case of appointments for service in the veterans' employment service provided for in section 3 of this Act, the Secretary shall appoint only veterans of wars of the United States. (June 6, 1933, c. 49, s. 2, 48 Stat. 114; 29 U. S. C. 49a.)

HISTORICAL NOTE

This is section 2 of Pub. No. 30, 73d Cong., "An Act To provide for the establishment of a national employment system and for cooperation with the States in the promotion of such system, and for other purposes."

1044. Retention in employment preference for honorably discharged veterans, their widows and orphans.

NOTES OF DECISIONS

Opportunity given to establish preference.-The provision regarding employees entitled to military preference, included in civil-service rule XII, is intended as a protection to such employees. When reduction in force is contemplated, it is incumbent upon the official charged with making such reduction to ascertain which among the employees affected are entitled to military preference, and such employees as are entitled to preference but who have not furnished the necessary proof should be given opportunity to establish their claim to military prefer ence before the reduction takes place. (U. S. Civil Service Commission Form 1481, May 1936, par. 33.)

Grade and character of work to be considered.—Reduction may be made to conform to the grade or character of work and the employee dropped when there is no further need for his services. If the position held by an employee entitled to veteran preference is abolished and there is no like position to which he can be transferred, a Government establishment is not required to remove an employee not entitled to preference merely for the purpose of retaining the veteran. (Id. par. 34.)

"Economy Act" married persons' provision.-Section 213, act of June 30, 1932, provides that in any reduction of personnel in any branch or service of the United States Government or the District of Columbia, married persons (living with husband or wife) employed in the class to be reduced, shall be dismissed, if such husband or wife is also in the service of the United States or the District of Columbia. (Id. par. 35.)

Order of dismissal.-In order to give effect to the act of June 30, 1932, and to the provisions of law giving veteran preference in retention in reduction of force, the order of consideration is declared (37 Op. Atty. Gen. 167) to be as follows:

(1) Married nonpreference employees living with husband or wife also in the service.

(2) Married preference employees with the same marital status as in (1).

(3) Other nonpreference employees.

(4) Other preference employees.

NOTE. Under section 213 of the act of June 30, 1932, a veteran whose spouse is also in the service of the United States or of the District of Columbia would in the event of a reduction in force be dismissed before employees who are not married, or whose husbands or wives are not in the service. The act of June 30, 1932, takes precedence over veteran preference laws in conflict with its provisions. To this extent, his preference status as a veteran would be nullified. (Id. par. 36.)

Construction and operation.-In selecting employees to be demoted or separated on account of any reduction of working force, honorably discharged soldiers, sailors and marines, and the widows of such, and the wives of injured soldiers, sailors, and marines, who themselves are not qualified for a position in the Government service, will be placed at the top of the lists of competing employees in the order of their ratings, provided they attained for the last rating period an efficiency rating of not less than 80; and they will be retained in existing status, if their record in respect to deportment, attitude and attendance is satisfactory, in preference to all other persons with whom they are in competition, and they shall be considered to be in