the failure of the postmaster at the address on the notice to forward the letter to Mrs. B. at a new address which had been left with him.

There are weighty reasons why such a course would be inadmissible under the civil-service rules and regulations. It seems clear that after the revocation of the order of selection Mrs. B. stood in the same position as the other eligibles whose names were certified with hers; like them she had been certified but not appointed. If allowed it might result in the appointment of a person whose term of eligibility had expired, as in fact is the case with Mrs. B.; secondly, it might result in giving the State to which the appointee belonged more than its lawful quota of appointments, and such, we are informed, would be the result of Mrs. B.'s appointment at this time; and, thirdly, it might result in the appointment of a person over the heads of others of higher standing on the same register, whose names had been added since the appointee's name had been certified, and who would have been certified to the appointing power, if the Commissioners of the Civil Service had been applied to for the usual certificate. (Opinion of Apr. 3, 1894.)*

22. Review of decision by Commission upon question arising under the rules. Whether E. is eligible for reinstatement by reason of service in regiment of Indiana "minutemen" at the time of the insurgent foray known as Morgan's raid. The Commission decided that as the records of the War Department do not show that such an organization was in the service of the United States, he was not entitled to reinstatement.

If the Commission determined the question in accordance with law, no further proceedings in the premises are authorized.

No statute is found which authorizes the Secretary of the Interior or the AttorneyGeneral, upon the suggestion of the Secretary, to reverse or to review this action of the Commission. The limitations of the statutes and the precedents established by learned predecessors preclude me from now reviewing the decision made by the Civil Service Commission. (Opinion of June 25, 1891.)

23. Validity of appointment contrary to apportionment.-H. was examined alleging an actual bona fide residence in one State, and subsequently and before appointment became a resident of another State without advising the Commission of his change of residence. Had he done so his name would have been transferred to the register of the new State. Had this been done his name would not have been certified when it was and he would not have been appointed, but a resident of the State from which he was examined would have been. As a consequence of his failure to give timely notice of his removal, the one State was charged with an appointment which it did not receive, and failed to receive an appointment it was entitled to; and the other received an appointment with which it was not charged and to which it was not then, nor has it been since, entitled under the law and rules. While it is the undoubted duty of the executive branch to give effect to the requirement of Congress for an apportionment, it is a very different thing to say that an appointment made in disregard of this rule of apportionment, through a mere inadvertence, is to fail entirely and be treated as a nullity.

Congress did not intend that in such a case as this, where everything was done in good faith, an inadvertent disregard of the rule of apportionment in making an appointment should annul that appointment. The statute is directory only in the above particular, consequently the appointment of H. was not invalid. (Opinion of Dec. 10, 1891.)

*In Pulaski r. Lyman, supreme court District of Columbia, Bradley, J., (Washington Law Reporter, vol. 21, p. 403,) it was held that when a postmaster notifies a secretary of a board of examiners of a selection for appointment from a certification, all rights under the certification are exhausted, and the Postmaster-General or the postmaster has no right to make a further appointment without a new requisition and certification.

24. Can a court require, on subpœna, the production of any application or examination papers or other records of the boards of civil service examiners?-1. The general power of appointment to office being in the President, qualified only by the right of Congress to vest the appointment of inferior officers in him, in the courts of law, or in the heads of Departments, the Civil Service Commission is to be regarded as an advisory board subordinate to the President, reporting to him, and clothed with the functions of aiding the President or any head of Department in the exercise of the appointing power.

2. The boards of civil service examiners are selected by the Civil Service Commission, and, though subordinate to the Commission, may be properly regarded as officials of the respective Departments in connection with which they act.

3. The application and examination papers or other records of the civil service examiners are therefore the official records or papers of the President or of the head of a Department.

4. Being records and papers of the character described, their production can not be compelled by the courts whenever the general public interests must be deemed paramount to the interests of private suitors.

5. When such general public interest forbids the production of an official record or paper in the courts, and for the purposes of the administration of justice, is a question not for the judge presiding at the trial in aid of which the record or paper is sought, but for the President or head of Department having the legal custody of such record or paper.

And such question may be determined either as and when arising in each particular case, and upon its own peculiar facts and merits, or in advance, by general rules applicable to all records and papers, or by special rules applicable to special classes of records or papers. (Opinion of Mar. 31, 1893.)

25. Classification of free-delivery post-offices-When it takes effect.-In so far as Postal Rule I required the Postmaster-General to classify the employees at the free-delivery post-offices, and required the Civil Service Commission to provide examinations, it went into effect on the date of its promulgation, and required the work to be done in accordance with the revised civil-service rules; otherwise, the rules come into force at each free-delivery post-office as soon as its classification is completed by the Postmaster-General and the first examination provided by the Commission, whether or not such examination results in an eligible register. (Opinion of May 5, 1893.)

26. Authority of the Commission to prescribe certain regulations respecting legal residence.-If the construction given to the words in the Commission's order of March 7, 1893, viz, "actually living and residing in and having his or her place of abode," involves narrowing the statutory requirement of "actual bona fide residence," then it is a regulation which the Commission has no authority to make. Attorney-General Miller, in his opinion of April 1, 1891, construing the words "actual bona fine resident," contained in the act of July 11, 1890, held that these words did not necessarily require actual bodily presence. The order of the Commission does require actual bodily presence, except in the four classes of cases specified therein, and is therefore a narrowing of the statutory requirement of "actual bodily residence," and to this extent unauthorized. (Opinion of Aug. 29, 1893.)

27. Certain appointments of superintendents and clerks in the Baltimore post-office held to have been properly made, and the appointment of their successors to have been legal.-Prior to November 1, 1894, the postmaster at Baltimore notified certain persons that he had appointed them respectively to the positions of superintendents of divisions and clerks to the post-office, and notified the incumbents of their removal. On November 2 the places were, by order of the President, made subject to competitive examination under the civil-service act. Up to November 2 the appointments and removals in questions were regulated by section 419 of the Postal Laws and Regulations.

The postmaster was empowered to employ the clerks in question, and no formal appointment or approval was requisite. He was also empowered to make removals without restriction. The notice to new employees was sufficient, as was notice to incumbents of their removal, and the appointments and removals were effected before the order of the President operated upon their positions. The removal and appointment were therefore held to be legal. (Opinion of Mar. 18, 1895, Vol. XXI, p. 140.) 28. Furlough of assistant microscopist in Department of Agriculture.—It is not necessary for the Secretary of Agriculture to give a notice of furlough without pay to assistant microscopists over his official signature in each individual case, when their services are not required. A general order, signed by him, directing inspectors in charge of assistant microscopists to furlough them without pay when their services are not required, will be sufficient. (Opinion of Feb. 24, 1896, Vol. XXI, p. 319.)

29. Effect of delivery of certification of eligibles.-The certificate delivered to an appointing officer by a subordinate of the Civil Service Commission containing a list of eligibles is a complete authority to the officer and a complete protection to the appointee. (Opinion of May 1, 1896, Vol. XXI, p. 335.)

30. Method of appointment of chiefs of bureaus in the Department of State. The chief clerk, chiefs of bureaus and translators in the Department of State are clerks within the meaning of section 169 of the Revised Statutes; chiefs of bureaus in the State Department "receive the same compensation and exercise the functions of chiefs of divisions," and are not chiefs of bureaus within the meaning of section 178, Revised Statutes. These officials are to be appointed by the Secretary of State, and they come within the civil-service act and rules. (Opinion of June 4, 1896, Vol. XXI, p. 363.)

31. Effect of civil-service act on paragraph 4415, Revised Statutes, concerning board of examiners for inspectors of steam vessels.-Section 4415, Revised Statutes, so far as it prescribes the method by which vacancies on the board of inspectors of hulls of steam vessels shall be filled, was repealed by the civil-service act, and the board provided by said section can not act as a board of examiners under the civil-service act unless the members of such board are selected and appointed as such board of examiners under section 5, Rule IV. (Opinion of Aug. 10, 1896, Vol. XXI, p. 393.)

32. Person holding a position on the date it is classified not required to serve probationary period.—A person holding a position on the date it is classified is not subject to the provisions of the civil-service act and rules that there shall be a period of probation before absolute appointment or employment. Section 7 of Rule II gives to "a person holding a position on the date said position is classified under the civil-service act" all the rights and benefits of persons of the same class or grade appointed under that act. The language is, "the rights and benefits;" that is, "rights and benefits" after appointment, not burdens and conditions before appointment and limitations of it. Those in the service were retained in it, not probationally, but as approved; not conditionally, but absolutely. The rule accepted them, and if it had not intended it fully, there would have been a careful discrimination as to service and not an indistinguishable comprehension and putting on trial of those who have been in the service for years with those of, may be, a few months. (Opinion of July 10, 1897.)

III. DECISIONS OF THE COMMISSION ON QUESTIONS ARISING UNDER THE ACT AND RULES AND DEFINING ITS PRACTICE.

Age.

False statement in regard to.-Whenever for reasons satisfactory to the Commission a person is admitted to examination who has made a false or incorrect statement relative to age in previous applications, the fact shall accompany the papers, should the person's name be certified for appointment. (Minutes, Dec. 9, 1895, vol. 19, p. 557.)

Age limit.

1. Begins with the filing of application paper. (Minutes, June 4, 1888, clause 4, vol. 8, p. 18.)

2. Physicians, Indian service-Minimum age limitation for.-The Indians as a rule look upon persons of age and experience as alone qualified to render medical service, and very often refuse to accept attendance or medicines from those who are young in years, believing that they are not sufficiently experienced to be relied upon. The change of the rule (reducing the minimum age limitation from 25 to 21 years) might therefore work a hardship to the persons appointed, in that after having gone to the expense incident to removal to the far West, it might be found that the Indians refuse to accept their services, and as, in the case of physicians, the most important thing is to secure the confidence of the Indians, failure to do so would of course render necessary the severance of the connection of the appointee with the service. (Letter of the Commissioner of Indian Affairs, Sept. 15, 1893.)

3. In case an applicant will become of the required age on or before the exact day of the examination, his application shall be accepted tentatively if filed in otherwise complete form by the hour of closing business on the day prescribed for stopping the receipt of all applications for that examination. Such applications will be numbered with the others that may have received final approval, but they will not be actually approved until the applicants become of the required age. In no case shall an application be accepted for a certain examination if the applicant will not become of the age on or before the day of such examination. (Minutes, July 6, 1896, vol. 20, p. 274.)

4. Rights of applicants under previous limit, when limit is changed.-When the minimum age limit was raised from 18 to 20, those who were over 18 but under 20, who had filed applications before the change, were allowed to take the examination with the understanding if the period of eligibility of any who became eligible should expire before they became 20, that all such should be allowed reexamination on their old applications, so that they might not be deprived of rights which had accrued under the old rule. (Minutes, Mar. 2, 1893, vol. 10, p. 264.)

5. Railway Mail Service.-The age limit is waived in the case of those described in section 1754, Revised Statutes, namely, those discharged for disability resulting from wounds or sickness incurred in the line of duty. The conditions of this service are such that a maximum age limit is necessary, if its efficiency is to be maintained. That limit was fixed at 35 in the civil-service rules, (1) because that was the limit fixed by the regulations of the Post-Office Department before the service was classified, and (2) because the great strain upon the physical constitution and powers of endurance of those engaged in this service, and the greater ease and facility with which young men learn the schemes of distribution, and consequently their greater efficiency in the service, made it necessary to fix it at some point anterior to the time when the average man reaches the maximum of physical and mental ability and aptitude. The question was seriously debated at the time, whether, in the interest of a good service, the limit should not be fixed at 30 rather than at 35.

Notwithstanding the above considerations, the maximum age limit is waived in the case of those who are entitled to preference in civil appointments under section 1754, Revised Statutes, not because they are more competent than other honorably discharged soldiers (for in most instances they are undoubtedly less so), but because there is no discretion to do otherwise, since the seventh section of the civil-service law provides that, "Nothing herein contained shall be construed to take from those honorably discharged from the military or naval service any preference conferred by the seventeen hundred and fifty-fourth section of the Revised Statutes;" and such preference has been understood to extend to age limits. In excepting from the age limit only those entitled to preference under section 1754 there is no discrimination against other classes, but a discrimination in favor of this particular class, because the laws discriminate in favor of it. Very few of this class, notwithstanding the law's favors, offer themselves for examination, being deterred, no doubt, by a knowledge of their physical incapacity for the hardships of the service or to meet the

requirements of the physical examination which must be undergone in connection with the filing of the application. (Letter Book U, p. 126, Mar. 22, 1892.)

Appeal from markings.

Customs and postal service.-Inspection by competitor of his papers may take place in the presence of the secretary of the board or of any other member when necessary, the competitor to make no copy of questions or answers, and the board to review no papers except on appeal made in writing. Ordinarily, appeals should be made directly to the Commission, but the board may review papers on appeal, and if errors in the markings are discovered may obtain consent of the Commission for their correction. It is not desirable that the board should hear oral statement or argument by appellants in the support of their appeals. (Minutes, Apr. 24, 1888, clause 6, vol. 7, p. 301.)

Applicant.

1. Addresses of applicants not to be furnished to private parties.—Requests for permission to copy names and addresses of applicants will be denied. This is information which should not be made accessible to private individuals for private enterprises. (Minutes, July 3, 1897, vol. 21, p. 288.)

2. Inspection of papers.-No person will be permitted to inspect the papers of applicants who habitually or regularly does so for many different persons, and permission will not be granted to any representative of an applicant to see his papers after the expiration of thirty days from the date of notice of standing, except upon a statement of the reasons by the applicant, approved by the Commission. (Minutes, Feb. 26, 1895, clause 4.)

Application. See Decisions of Attorneys-General, ante, 9, 19, 20, 24, and Certification.

Appointment.

1. Dropping from one register when appointed from another.-Any applicant who is on a clerk register and also on one or more special registers may be certified from any one, and if appointed from the clerk register shall remain eligible on the special registers; but if appointed from a special register shall be dropped from all other registers. (Minutes, Jau. 18, 1887, clause 1, vol. 4, p. 54.)

2. "Lowest class or grade" means lowest class in a grade for which an entrance examination is provided. (Minutes, May 21, 1888, clause 2, vol. 7, p. 397.)

3. Approval of Commission necessary. (See Opinion of Comptroller of the Treasury, July 25, 1896, ante, p. 128.)

4. When a post-office is in the classified service persons irregularly employed can not be legally paid. The expense of paying them must be borne by the postmaster himself and not by the Government. (Minutes, Aug. 23, 1893, clause 12.) This view has been sustained by legal authorities.

5. When declined.—The Commission will not allow requests for the benefit of remaining certifications, except in special cases, unless such requests are made within thirty days from the date of the Commission's letter informing an eligible of the regulations relative to the benefit of remaining certifications which the rules allow. (Minutes, Feb. 2, 1897, vol. 21, p. 45.)

6. Absolute-where it has not been given, and employee still remains in the service.— Where a person, after having completed a probationary service, still continues in the service, and it is apparent from such continuance that his conduct and capacity are satisfactory, absolute appointment must be conclusively presumed. (Letter Book L, p. 343; see, also, Probationary period, Customs service.)

7. Temporary.—Where a person appointed from a register under a temporary appointment is again selected for a permanent appointment in the same department the appointment should date from the original temporary appointment. (Minutes, May 29, 1897, vol. 21, p. 235.)

8. An appointment without examination and certification can not be made whenever there is an eligible on a register of the post-office where it is proposed to make