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The proclamation further appoints a director general for the purpose of undertaking Federal possession and control.

Section

The act of March 21, 1918, passed nearly four months after Federal control had been assumed, deals primarily with the manner in which the carriers shall be compensated. The act also regulates some of the incidents growing out of Federal control and, in section 9, states that the provisions of the act of August 29, 1916, "shall remain in force and effect except as expressly modified and restricted by this act.” 12 of the act provides for payment of expenses of operation out of receipts from operation "in the same manner as before Federal control" and for the payment of any deficit thereby arising out of the revolving fund created by section 6. There are no other provisions bearing upon employment during Federal control, so that such employment is left to be governed by the terms of the earlier statute and proclamation. It has been held by my predecessors that Congress, in enacting legislation, may, by implication and without any express words to that effect, exempt positions in the Government service from civil-service requirements (25 Op. A. G. 413; 22 Op. A. G. 556). The act of August 29, 1916, and the ensuing proclamation of November 26, 1917, are in terms directed to meet a war emergency. It is part of the history of the times that the Government acted in order to eliminate delay in transportation. It is also universally recognized that delay results from the application of civil service requirements. The necessities of the situation out of which arose Federal control of the railroads therefore raise a clear implication that Congress did not intend employees engaged in the Federal operation of the railroads to be bound by the civilservice rules.

Evidence much more slight than in the present case has been held to show an intention on the part of Congress to dispense with the civil-service rules. The sundry civil act of July 1, 1918, contained an appropriation "for temporary typewriters and stenographers in the Department of State, to be selected by the Secretary, $2,000, to be immediately available." Attorney General Griggs, in holding (22 Op. A. G. 556) that the positions thus created were not within the civil service, said:

"The appropriation clause does not create offices or positions, but merely provides for temporary emplo ment. In such cases it is quite reasonable to suppose that Congress intended that the Secretary should be unimpeded in his speedy selection of his force by any of the ordinary delays which occur in complying with the civilservice rules where positions in the classified service are to be filled upon certification of names from the eligible list."

The commission has asked me whether the civil-service act and rules apply to employees of the Railroad Administration whose employment is due to Federal control of the railroads, and the question is said not to refer to the operating employees of the roads. The suggested distinction between these two classes of employees is one not found in the measures dealing with Government operation of the railroads. It is also doubtful whether it could be given practical effect. Difficult questions arising from the consolidation of service and functions on the one hand and from increase in duties and burdens because of Federal control on the other hand would be raised. I believe that the legislation of Congress and the action of the President treated the transportation systems as a unit. If this is so, all or none of those employed during Federal management are subject to civil service.

The wording of the proclamation taking over the railroads is inconsistent with the application of civil-service rules to all those employed during Federal possession. The proclamation states that, except as the Director General otherwise directs, the duties imposed through Federal operation are to be performed "through the boards of directors, receivers, officers, and employees of said systems of transportation" and that operations are to continue "in the usual and ordinary course of the business of the common carriers, in the names of their respective companies." In other words, the employees of the carriers, who have not been appointed according to civil-service rules, are to be continued in employment until the Director General rules otherwise. In addition, operations are to be continued according to the established course of business of the carriers, which would not be the case if a vital change were to be made in the method of engaging employees. The power of the President to exercise control of the railroads through any agency whatsoever was confirmed by section 8 of the act of March 21, 1918.

Rule 2, section 1, of the civil-service rules provides:

"The classified service shall include all officers and employees in the executive civil service of the United States, heretofore or hereafter appointed or employed, in positions now existing or hereafter to be created

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In Twenty Per Cent Cases (13 Wall. 568; 20 Wall. 179), it was held that a person need not be designated in an appropriation act to come within the terms of a joint resolution

of Congress applying to persons "now employed in the civil service of the United. States." Authorized employment by a department head was held to satisfy the resolution. The civil-service rule applies, however, to employment in a position "now existing or hereafter to be created." It seems reasonable to suppose that the commission's rule was intended to apply to positions created by act of Congress and not to positions where an administrative officer is given authority to designate both the character of the duties to be performed and the amount of compensation to be received.

I have set forth at some length the reasons that lead me to conclude that persons employed by the Director General of Railroads in connection with the Federal control of railroads need not be appointed in accordance with the civil-service act and rules. Respectfully,

A. MITCHELL PALMER,

Attorney General. AUGUST 18, 1919.

The Honorable, the ATTORNEY GENERAL.

SIR: This commission has the honor to refer to your opinion rendered to the President under date of July 16, 1919, on the question whether persons employed by the Director General of Railroads shall be appointed in accordance with the civil-service act and rules.

The commission would not presume, of course, to question an opinion rendered by the Attorney General, and in fact the commission is entirely satisfied with your conclusions in this opinion. We trust that we will not be misunderstood, however, if we invite your attention as follows:

1. In the opinion, you state:

"It has been held by my predecessors that Congress, in enacting legislation, may, by implication and without any express words to that effect, exempt positions in the Government service from civil-service requirements (25 Op. A. G. 413; 220 p. A. G. 556)."

The commission is familiar with the opinions here cited, but has always regarded the later opinion of the Attorney General (26 Op. A. G. 502) as superseding these opinions; it will be noted that this opinion holds as follows:

"I am of the opinion, therefore, that under the existing civil-service rules all places in the executive civil service, except those mentioned in schedule A, and except persons employed merely as laborers, and persons whose appointments are subject to confirmation by the Senate, must be appointed as a result of open competitive examinations, held under the provisions of the law. Congress may, of course, at any time it deems proper, exempt any position or any class of positions from the operation of the act, but to do this it must use language indicating clearly and affirmatively its intention that the civil-service rules should not be applied."

2. A little later on in the opinion, you state:

"It is also universally recognized that delay results from the application of civilservice requirements."

The commission does not and can not agree with this view, and it is satisfied that the contrary has been repeatedly demonstrated. The commission is confident that if qualified people are to be employed, they may be most economically and expeditiously employed under the system provided by the civil-service law. There is ample testimony on this point; in fact, the only cases where delay may have resulted have been wherein such delay has been caused by the failure of appointing officers to observe the requirements of the civil-service law.

Very respectfully,

MARTIN A. Morrison, President Civil Service Commission.

EXECUTIVE ORDERS.

I. GENERAL ORDERS AMENDING THE CIVIL SERVICE RULES.

REINSTATEMENT OF VETERANS, THEIR WIDOWS, AND ARMY NURSES.

April 16, 1919.

Section 1, Civil Service Rule IX, is amended to read as follows:

1. A person separated without delinquency or misconduct from a competitive position or from a position which he entered by transfer or promotion from a competitive position or to accept another appointment in the executive civil service may be reinstated subject to the following limitations:

(a) Unless otherwise provided hereinafter a person may be reinstated only to the department or independent Government establishment from which separated and upon requisition made within one year from the date of his separation.

(b) A person who served in the Civil War or the War with Spain and was honorably discharged, or his widow, or an Army nurse of either war, separated heretofore from the competitive classified service, may be reinstated in the department or independent establishment from which separated without time limit. If hereafter separated, reinstatement may be made within five years from the date of separation. (c) A soldier, sailor, marine, or Army nurse of the War with Germany formerly in the competitive classified service may be reinstated in any part of the competitive classified service within five years from the date of honorable discharge from the military service if he has the required fitness to perform the duties of the position to which his reinstatement is sought.

(d) The widow of a veteran of the War with Germany, formerly in the competitive classified service, who was the wife of such veteran while he was in the military service, may be reinstated in any part of the competitive classified service within five years from the date of termination of her husband's military service by death or honorable discharge.

(e) No person in any of the foregoing groups may be reinstated to a position requiring an examination different from that required in the position from which he was separated without passing an appropriate examination.

Section 2 of Rule IX remains unchanged.

The Executive order of July 18, 1918, providing for the reinstatement of Government employees who left the classified civil service to enter the military or naval service during the War with Germany, and the Executive order of February 7, 1919, amending section 1 of Civil Service Rule IX (erroneously referred to as Rule XI) are hereby revoked.

This Executive order is recommended by the Civil Service Commission to harmonize and consolidate provisions relating to the reinstatement of veterans, their widows, and Army nurses.

The Executive order of February 7, 1919, referred to in above order, provides as follows:

Section 1 of Civil Service Rule XI is amended to read as follows:

1. A person separated without delinquency or misconduct from a competitive position, or from a position which he entered by transfer or promotion from a competitive position, may be reinstated in the department or office in which he formerly served, upon certificate of the commission, subject to the following limitations:

(a) The separation must have occurred within one year next preceding the date of the requisition of the nominating or appointing officer for such certificate; but this limitation shall not apply to a person who served in the Civil War or the War with Spain and was honorably discharged, to an Army nurse of either war or the War with Germany, or to the widow of a person who served in any of these wars and was honorably discharged.

(b) No person may be reinstated to a position requiring an examination different from that required for the position from which he was separated without passing an appropriate examination.

This amendment is recommended by the Civil Service Commission to make uniform the provisions applying to Army nurses and widows of persons who served in any war and were honorably discharged.

EXEMPTION FROM PHYSICAL REQUIREMENTS OF DISABLED AND HONORABLY DISCHARGED SOLDIERS, SAILORS, AND MARINES UPON CERTIFICATION OF THE FEDERAL BOARD FOR VOCATIONAL EDUCATION.

April 16, 1919.

Civil Service Rule V is hereby amended by the addition to the following proviso to clause (b) of section 4:

Provided, that the commission may, in its discretion, exempt from the physical requirements established for any position a disabled and honorably discharged soldier, sailor, or marine upon the certification of the Federal Board for Vocational Education that he has been specially trained for and has passed a practical test demonstrating his physical ability to perform the duties of the class of positions in which employment is sought.

As amended section 4 will read:

The commission may refuse to examine an applicant or to certify an eligible for any of the following reasons: (a) Dismissal from the service for delinquency or misconduct within one year next preceding the date of his application; (b) physical or mental unfitness for the position for which he applies: Provided, that the commission may, in its discretion, exempt from the physical requirements established for any position a disabled and honorably discharged soldier, sailor, or marine upon the certification of the Federal Board for Vocational Education that he has been specially trained for and has passed a practical test demonstrating his physical ability to perform the duties of the class of positions in which employment is sought; (c) criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct; (d) intentionally making a false statement in any material fact, or practicing any deception or fraud in securing examination, registration, certification, or appointment; (e) refusal to furnish testimony as required by Rule XIV; (f) the habitual use of intoxicating beverages to excess. Any of the last five foregoing disqualifications shall also be good cause for removal from the service.

This amendment is recommended by the Civil Service Commission after consultation with officials of the Federal Board for Vocational Education and the United States Employees' Compensation Commission.

AMENDMENTS TO RULES V AND VI SO AS TO GIVE EFFECT TO THE PROVISIONS OF THE URGENT DEFICIENCY ACT OF JULY 11, 1919, CONCERNING PREFERENCE.

August 18, 1919.

Section 5 of civil-service Rule V and section 2 of civil-service Rule VI are hereby amended by striking out the words "section 1754, Revised Statutes," and inserting in lieu thereof "the urgent deficiency act of July 11, 1919."

As amended, section 5 of Rule V will read as follows:

The commission may, with the approval of the proper appointing officer, change by regulation the existing age limits for entrance to the examinations under these rules; but persons preferred under the urgent deficiency act of July 11, 1919, may be examined without regard to age.

As amended, section 2 of Rule VI will read as follows:

All competitors rated at 70 or more shall be eligible for appointment, and their names shall be placed on the proper register according to their ratings; but the names of persons preferred under the urgent deficiency act of July 11, 1919, rated at 65 or more, shall be placed above all others.

The provision in the urgent deficiency act approved July 11, 1919, "that hereafter in making appointments to clerical and other positions in the executive branch of the Government in the District of Columbia or elsewhere preference shall be given to honorably discharged soldiers, sailors, and marines, and widows of such and to the wives of injured soldiers, sailors, and marines who themselves are not qualified, but whose wives are qualified to hold such positions," supersedes section 1754, Revised Statutes, which gave preference only to those discharged for disability of service origin, and renders necessary these amendments.

II. ORDERS AMENDING SCHEDULE A.

EXCEPTION OF POSITIONS ON ISTHMUS OF PANAMA PAYING NOT MORE THAN $106 A MONTH.

November 16, 1918.

Section 4 of the Executive order dated February 2, 1914, providing conditions of employment for the permanent force for The Panama Canal, and paragraph 15, Subdivision I, Schedule A, of the civil-service rules, as amended by the Executive

order of April 5, 1918, are hereby amended so as to permit appointments to clerical positions in the Federal service on the Isthmus of Panama paying not more than $106 a month, without examination under the civil-service rules. This order shall remain in effect only so long as the unusual conditions due to the present war exist and no longer than six months from the end of the war.

EXCEPTION OF CERTAIN POSITIONS, FOREST-PRODUCTS LABORATORY, MADISON, WIS. November 16, 1918.

Schedule A of positions excepted from examination under the civil-service rules is hereby amended by adding a new paragraph to Subdivision IX, Department of Agriculture, to be numbered 5 and to read as follows:

5. Carpenters (including cabinetmakers, joiners, and propeller makers), messengers, mechanics, skilled laborers, laboratory aid and engineers, and laboratory helpers employed in the Forest Service at the forest-products laboratory, Madison, Wis., during the emergency period of the present war. They shall serve only so long as absolutely required and in no case longer than the duration of the war emergency. This order is based upon the recommendation of the Secretary of Agriculture with the concurrence of the Civil Service Commission because of the abnormal labor conditions growing out of the present war.

EXCEPTION OF LABORERS IN CHARGE OF LIGHT STATIONS OR BUOYS, LIGHTHOUSE SERVICE.

February 25, 1919.

Subdivision XI of Schedule A of positions excepted from examination under the civil-service rules is hereby amended by the addition of a new paragraph, to be numbered 5, in language as follows:

5. Laborers in charge of light stations or minor lights or buoys whose duties require only a portion of their time in cases where it is not considered in the interests of the service to make selections from registers of eligibles.

EXCEPTION OF ATTENDANTS AT QUARANTINE STATIONS IN THE UNITED STATES AT $75 A MONTH, AND AUTHORITY FOR ASSIGNMENT OF PERSONS TO CLASSIFIED POSITIONS DURING TREATMENT OR CONVALESCENCE AT GOVERNMENT SANATORÍUMS,

PUBLIC HEALTH SERVICE.

May 4, 1919.

Paragraph 7, Subdivision III of Schedule A of positions excepted from examination under the civil-service rules is hereby amended to allow the appointments of attendants at quarantine stations in the United States at $75 per month, and to permit the assignment of persons to classified positions during treatment or convalescence at Government sanatoriums in the Public Health Service.

Paragraph 7, Subdivision III of Schedule A, will read as follows:

"7. In the Public Health Service: Attendants employed at not more than $75 per month at quarantine stations and at not more than $50 per month at other hospitals and sanatoriums in the United States or at any salary elsewhere; scientific assistants employed temporarily for periods not to exceed six months, or longer with the prior approval of the commission, in investigations of contagious or infectious diseases and matters pertaining to the public health; any person temporarily employed in the work of preventing or suppressing a threatened or actual epidemic of any disease for which the appropriation for the prevention of epidemics is available; and persons assigned to classified positions during treatment or convalescence at Government sanatoriums."

EXCEPTION OF ASSISTANT TO THE SECRETARY,OF COMMERCE.

May 24, 1919.

Schedule A, Subdivision XI, of the civil-service rules, is hereby amended by the addition of the following paragraph:

The Assistant to the Secretary in the office of the Secretary of Commerce.

This order is issued upon recommendation of the Secretary of Commerce in view of the fact that the position is one which involves duties which are peculiarly personal and confidential, and is similar to the position of Assistant to the Secretary of the Interior which was placed under Schedule A, Subdivision VIII, paragraph 25, by the Executive order of April 21, 1911, and generally to the positions of private secretary or confidential clerk provided in Schedule A, Subdivision I, paragraphs 1 and 2.

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