mission. (Asst. Sery. Int.. May 16, 1921, Enoch Davies, 21 P. & R. Dec. 116.

Exceptions to Indefinite Leave Bule The indefinite leave rule does not apply where an employee was carried on the rolls in violation of instructions from the head of his department, as shown by the following cas58:

The applicant, a clerk in the Interior Department and in the classified service resigned June 30, 1910. She was reinstated to date August 10, 1911, and indefinitely furloughed August 21, 1911. Since the last-mentioned date she has performed no service. Held: She was not in the service on the date the act of May 22, 1920, became effective, as retention of her name on the rolls was contrary to specific orders of the department. (Asst. Secy, Int., October 30, 1920, Maria Cecilia Kerr, 21 P. & R. Dec. 43.)

Applicant served in the Geological Survey from July 1, 1881, to April 30, 1900, and his name was placed on the per diem roll May 1, 1900, but he has not performed any service since the last mentioned date. His name was carried on the roll, contrary to the specific directions of the department, through inadvertence. Held: He was not in the classified civil service when the retirement act became effective. (Asst. Secy. Int., January 27, 1921, John K. Hillers, 21 P. & R. Dec. 88.)

STATUS OF INJURED EMPLOYEE UNDER ACT OF SEPTEMBER 7, 1916.

Injured Employees of Navy Yard on Leaves of Absence.-Employees of navy yards, gun factoriez, naval stations, and arsenals should be regarded as earning leave of absence under the act of August 29, 1916, 39 Stat. 617, for the period of disability resulting from their employment, during which they are paid compensation on account thereof under the employees' compensation act of Sep. tember 7, 1916, 39 Stat. 742, provided such employees recover from disability and again perform services; that is, time absent on account of disability may be counted in computing continuous service for the purpose of granting leave of absence under said act of August 29, 1916, but such employees who are in receipt of compensation on account of disability may not be paid during the same period for leave that may have accrued under said act of August 29, 1916. (26 Comp. Dec. 763.)

Receipt of Compensation Does Not Preserve Employee Status.-An employee who is in receipt of compensation under the act of September 7, 1916, may be dropped from the rolls as a result of resignation or discharge, and in such case he ceases to be

an employee, even though he may be drawing compensation under the act referred to. Asst. Secy. Int., December 27, 1922. James L. Miller, C. S. 37.)

Effects of Receipt of Compensation Construed Generally-A person drawing compensation under the Federal employees' compensation act may or may not have the status of employee. The fact of acquiring a compensation status does not, per se, work a severance of his relation to the Government as employee. He retains his status of employee so long as his name is properly borne upon the payrolls of his department. The receipt of compensation has no effect upon the operation of the six-months' leave of absence provision of section 3 of the retirement act. * If an employee in receipt of compensation has not been separated from his position by resignation or discharge and has thus retained his relation as employee until he has reached the specified age for retirement, the provision for automatic separation from the service contained in section 6 of the act of May 22, 1920, operates to effect his separation upon reaching retirement age in the absence of the certification for continuance provided in said section. (Asst. Secy. Int. to Com. of Pensions, January 27, 1923.)

Status of Substitute Postal Employees.— Substitute letter carriers and substitute clerks in the post offices, and substitute clerks in the Railway Mail Service, are employees in the classified civil service of the United States, irrespective of the length of time they have been carried on the substitute roll without performing service. If it should develop that there is an abuse of the law under which it is possible to continue employees indefinitely as substitutes, the remedy would lie either in change of administrative practice or in legislative action. (C. S. C., January 14, 1921, Robert V. L. Cameron, R-4424.)

STOREKEEPERS, STOREKEEPER-GAUGERS,

AND GAUGERS.

Storekeeper-gaugers, Etc., Civil Service Status Not Affected by Intermittent Employment.-Gaugers, storekeepers, and storekeeper-gaugers in the Internal Revenue Service were required to furnish bonds to the collectors of internal revenue, and their services were not continuous, as they were subject to assignment to duty at bonded warehouses within the internal revenue district in which they were appointed. They were required at all times to be subject to the call of collectors for assignment to duty. The periods of their assignment usually rested with the owners of warehouses and depended

upon the amount of spirits to be gauged and released from bond. * * * The commission is of the opinion that gaugers, storekeepers, and storekeeper-gaugers who were required to be in readiness to answer the call of collectors should be considered as having a competitive classified status within the meaning of the retirement act, but that in the case of any storekeeper

gauger who has not been assigned to duty for a period of more than one year information should be obtained from the collector under whom he was serving as to whether the employee was held to be subject to his call. Such an employee by renewing his bond could remain on the rolls of the department indefinitely without being required to perform service. (C. S. C., November 12, 1920, George P. Lester, R-1186.)

*

Storekeeper-gaugers, Rule for Establishing Service.-Under date of December 9, 1920, amongst other things it was determined in harmony with the recommendations made by the committee appointed by the Commissioner of Pensions to fix the status of storekeeper-gaugers, etc., in view of their intermittent employment that "The committee has never entertained any doubt that storekeepers, storekeepergaugers, and gaugers have a civil service status during the interim of assignments to duty. * * A person who possesses a 'competitive classified status,' who has been by the Civil Service Commission certified to the Secretary of the Treasury for appointment, and who has been accepted and appointed a storekeeper, storekeeper-gauger, or gauger may be considered theoretically 'in the classified civil service of the United States,' in the same sense that a substitute letter carrier is in the 'classified civil service,' but the tenure of his office and employment is intermittent and of uncertain duration. * *"" The committee de

*

cided therefore that in order that all the facts of employment may appear affirmatively in evidence in each individual case, the Secretary of the Treasury should be required to furnish this bureau with a report showing the date of assignment to duty and the period of actual employment under such assignment each year from the time of appointment as a storekeeper, storekeeper-gauger, or gauger and the annual basic salary, pay, or compensation received from the United States for the 10 years next preceding the date of retirement. (Report of committee of Bureau of Pensions dated December 9, 1920.)

NOTE.-See effect of transfer of storekeepergaugers, etc., to excepted positions as given under the following heading, "Status in excepted positions."

40251-23-2

STATUS IN "EXCEPTED POSITIONS."

Transfer or Promotion to an Excepted Position Does Not Change Classified Status. Applicant was appointed an underclerk in the Interstate Commerce Commission September 14, 1908, as a result of competitive civil service examination. He served in such capacity until Januconfidential clerk to one of the commisary 16, 1913, when he was appointed a sioners, an excepted position, serving as such until November 16, 1919, when he was appointed an attorney in said commission, also an excepted position, and provided by the retirement act has been which he now holds. The 2 per cent deducted from his salary since August 1, 1920, and he now claims a refund of $49.67, being the amount of said deductions from August 1, 1920, to December 24, 1920, the date of the President's order (see p. 55, appendix), which he claims put him into

the classified civil service. Held: He examination, and he did not lose his came into the service through competitive status in the classified civil service by transfer or promotion to an excepted position. (30 Op. Atty. Gen. 181.) The President's order was made simply to confirm the position which had been already assumed by the different branches of the Government in administering the retirement act. It was not a sine qua non so far as classified civil service status was concerned in this case. The applicant was in the classified civil service independent of said order and has no right to a refund. (Asst. Secy. Int., June 3, 1921, Ralph H. Kimball, 21 P. & R. Dec. 123.)

Excepted Positions, Classified Status not Acquired by Original Appointment.The claimant (an acting assistant surgeon of the execution of his application for in the Public Health Service) at the date annuity was filling an excepted position to which he had been appointed without competitive examination; and such was his status during his entire period of service. Held: Executive order No. 3375 (December 24, 1920), does not provide for the retirement, with annuity, of those who have never had a status under the civil competitive classified service. (Asst. Secy. Int., January 24, 1921, John G. Stanton, 21 P. & R. Dec. 85.)

The claimant (an inspector in the field service of the Engineer Department at Large of the War Department), was occupying at the date of his retirement on August 20, 1920, an excepted position under Schedule A, subdivision I, paragraph 6, of the civil service rules, which excepts from the requirement of examination any person receiving for his personal salary compensation aggregating not more

than $300 per annum. Held: That an employee occupying an excepted position designated in Schedule A is not in the classified civil service within the meaning of the retirement act, unless appointed to such position in the manner in which competitive positions are filled. (Asst. Secy. Int., June 14, 1921, John R. C. Brown, R-3238; Atty. Gen., June 23, 1913, 30 Op. 181; Ex. order, December 24, 1920.)

Storekeeper-Gaugers, Effect of Temporary Assignment to Excepted Position.— The classified status of storekeepergaugers is not affected by their temporary appointment in the excepted position of warehouse agent. (C. S. C. Min., February 4, 1921.)

Storekeeper-Gaugers, Classified Status not Changed by Temporary Transfer. In a decision rendered February 10, 1923, the Assistant Secretary of the Interior quoted with approval the following ruling of the Civil Service Commission dated February 7, 1921:

The commission is of the opinion that the storekeeper-gaugers will retain their classified status which will in nowise be affected by their temporary appointment as warehouse agents. The very nature of the employment of storekeeper-gaugers requires them to secure other employment as they can not always depend upon the salary they earn as storekeeper-gaugers which depends upon the number and length of assignments.

It appears that a storekeeper-gauger is free to accept other employment with the Government or otherwise when his actual service is not needed in that position. He is paid only when actively employed, but so long as he is retained on the rolls he has the legal status of an employee. His temporary employment in some other capacity outside of the classified service does not destroy his status as an employee in the classified civil service, and therefore the applicant, a storekeeper-gauger, did not lose his classified status by his temporary employment in the unclassified position of warehouse agent. (Asst. Secy. Int., February 10, 1923, Patrick M. Carr, C. S. 41).

classified competitive service and are therefore subject to the retirement act. (C. S. C. Min., September 7, 1920.) Secret

Service Employees.-Secret Service employees are subject to the retirement act. (C. S. C. Min., September 2, 1920.)

Rent Commission of the District of Columbia. With the exception of the secretary, all employees of the commission shall be appointed from lists of eligibles supplied by the Civil Service Commission and in accordance with the civil service law. (Act of October 22, 1919, 41 Stat. 299.)

United States Shipping Board.-With the exception of the secretary, the attorneys, and certain other positions of a technical or confidential character, the employees of the United States Shipping Board are in the classified civil service of the United States. (Act of September 7, 1916, 39 Stat. 729.)

United States Tariff Commission.— With the exception of the secretary, a clerk to each commissioner, and certain special experts, all employees of the United States Tariff Commission are in the classified civil service of the United States. (Act of September 8, 1916, 39 Stat. 795.)

Federal Trade Commission.-With the exception of the secretary, a clerk to each commissioner, the attorneys, and certain special experts and examiners, all employees of the Federal Trade Commission are made a part of the classified civil service. (Act of September 26, 1914, 38 Stat. 718.)

Bureau of the Budget.-All employees of the Bureau of the Budget whose rate of compensation is not in excess of $5,000 per annum are included in the classified civil service of the United States. (Act of June 10, 1921, 42 Stat. 20.)

General Accounting Office.— The Comptroller General shall appoint, remove and fix the compensation of such attorneys and other employees in the general accounting office as may from time to time be provided for by law. All such appointments, except to positions carrying a salary at a rate of more than $5,000 a year, shall be made in accordance with the civil-service laws and regulations. (Sec. 311, Act June 10, 1921, 42 Stat. 20.)

CERTAIN EXCEPTIONS AND EXCLUSIONS.

The classified service does not include

positions under the Library of Congress, legislative, and judicial branches, consular and diplomatic services, Pan American Union, Emergency Fleet Corporation, Federal Reserve Board, Federal Farm Loan Board, War Finance Corporation, or

positions under the Government of the District of Columbia other than in the fire and police services and the Rent Commission. (C. S. C. report, vol. 38, p. 81.)

Alaskan Engineering Commission.The Alaskan Engineering Commission is excluded from the provisions of the act by Executive order of September 24, 1920. (See appendix, p. 55.)

Deputy United States Marshals. It is held that deputy United States marshals are not in the classified service since the act of October 22, 1913, became effective,

regardless of whether they were appointed under bond or through competitive examination. (Atty. Gen. Cir. Let., August 10, 1920.)

NOTE.-Prior to the act of October 22, 1913, office deputy marshals would seem to have been in the classified civil service. Their status is fully shown by civil service Form 2026, dated March, 1913.

Deputy Collectors of Internal Revenue.-Deputy collectors of internal revenue have not been in the classified civil service of the United States since the passage of the act of October 22, 1913. The original classification of the Internal Revenue Service was made in 1894 and applied only to clerks, storekeepers, storekeeper-gaugers, and gaugers. In 1896 deputy collectors, except chief deputies, were classified. This, with the exception of the highest positions, completed the classification of that service. (C. S. C. report 38, p. xxix.)

Deputy collectors of internal revenue may be appointed under the act of October 22, 1913 (38 Stat. 208), without regard to the civil service act and rules, and are, therefore, not within the scope of the retirement act, regardless of whether they are in fact so appointed. (Actg. Atty. Gen., July 19, 1920, 32 Op. 273.)

National Prohibition Officers and Employees. Under section 38 of the national prohibition act (41 Stat. 319), prohibition officers and employees must, with certain exceptions, be appointed under the civil service act and rules, and hence only such of them as must be so appointed are within the provisions of the retirement act. (Actg. Atty. Gen., July 19, 1920, 32 Op. 273.)

United States Railroad Administration. An employee in the United States Railroad Administration is not in the classified civil service of the United States. (Asst. Secy. Int., March 16, 1921, Charles J. Switzer, R-5328.)

NOTE. While it was held in the foregoing decision that an employee of the United States Railroad Administration was not in the classified civil service of the United States, the Solicitor for the Interior Department rendered an opinion under date of May 10, 1923, to the effect that the employees comprising the administrative forve in the Railroad Administration, both before and after the re

linquishment of Federal control, are to be regarded as employees in the executive civil service of the United States, and that the period of such service may be credited in computation of the length of service in accordance with section 3, of the retirement act, subject to the conditions specified in section 10 of the act.

National Military Home.-No position in the National Military Home for Disabled Volunteer Soldiers is or ever has been in the classified civil service of the United States. (Asst. Secy. Int., April 23, 1921, Stewart J. McGowan, R-6320.)

Army Field Clerks.-Army field clerks eral, without respect to the rules and regumay be appointed by The Adjutant Genlations of the Civil Service Commission, and from the date of their appointment they are solely within the control of the Rules and Articles of War and not subject to the rules and regulations of the Civil Service Commission. (Atty. Gen., June 21, 1917, 31 Op. 133.)

WAR EMERGENCY APPOINTMENTS.

Appointment under Executive Order of January 15, 1918.-An employee who was separated from the classified civil service in 1914, and was thereafter appointed a clerk under Executive order of January 15, 1918, did not have a classified civil service status at the time the retirement act became effective and is therefore not entitled to the benefits of the retirement act. The Executive order of May 16, 1921, provided, amongst other things, that "Employees appointed under the orders (war emergency) which are hereby revoked, serving in positions which are permanent under peace conditions, shall not hereby be given a competitive classified head of the department or independent status, but may, in the discretion of the establishment where now employed, continue in their present excepted status and in their present positions or such allied positions as the commission may approve." (Asst. Secy. Int., April 1, 1922, Alfred J. Bradford, 21 P. & R. Dec.

Appointment under Section 10 of Civil Service Rule II.—An employee who was separated from the classified civil service in 1911, and was appointed in 1917 under section 10 of civil service Rule II without competitive examination to a position in the Engineer Department at Large of the War Department similar to that formerly occupied by him as a competitive classified employee is not in the classified civil service of the United States, and is not, therefore, subject to the retirement act. (Asst. Secy. Int., April 1, 1922, Thomas S. Shelley, 21 P. & R. Dec.

Civil Service Status not Restored through War Emergency Appointment.In order to be entitled to the provisions of the retirement act an employee must