promulgated a revision of the Civil Service Rules prescribed by Exec. Order No. 209, Mar. 20, 1903, and amedatory orders. The amended Civil Service Rules contained in Exec. Order No. 7915 have been further amended by numerous executive orders which are cited in a note under Exec. Order No. 7915.

Exec. Order No. 7915 did not contain new schedules A and B but incorporated existing schedules by reference. New A and B schedules were contained in the following later executive orders: No. 8043, Jan. 31, 1939, 4F.R. 493–497; No. 8534, Sept. 6, 1940, 5 F.R. 3601-3606; and No. 9004, Dec. 30, 1941, 7F.R. 2-10.

The following is the text of Exec. Order No. 8760, May 27, 1941, 6 F. R. 2618:

"By virtue of the authority vested in me by the Civil Service Act (22 Stat. 403), and by section 1753 of the Revised Statutes of the United States (U.S. C, title 5, sec. 631), and in view of the present emergency conditions, the Civil Service Commission is hereby directed to refuse examination to any person who is, or who has been within three months of the date of the examination, employed in the civilian executive branch of the Federal Government, or to certify any such person who is on the eligible register of the Commission, unless such person submits the written assent of the department or office in which he is or has been employed to his taking such examination or to his being so certified. Such assent shall be based solely upon the finding, after due consideration, by such department or office that the person can render better service for the Government in the position, for which the examination is held or for which certification is requested.

"This order shall continue in effect until the Congress or the President declares that the present emergency has ceased to exist."

In general. - "An examination of the debates of congress, which will be found reported in the Congressional Record, vol. 14, pt. 1, 47th Cong., 2d Sess., discloses unmistakably the fact that congress never intended that the civil service law should, in any wise, affect the power of removal vested, under the constitution, in the president. The bill seems to have been framed upon the idea of taking away the temptation to remove persons from office by requiring appointments to be made, to fill vacancies, under civil service examinations. The debates will show that the bill was framed to carefully avoid that mooted constitutional question of the power of congress to establish a tenure of office with which the president could not interfere." (Flemming v. Stahl, 83 F. 940, 943, Dec. 24, 1897. See also: Morgan v. Nunn, 84 F. 551, 552-553, Jan. 24, 1898; 26 Op. Atty. Gen. 363, 375, Sept. 3, 1907.)

"It is, doubtless, within the power of Congress to require that all appointments to certain classes, grades, or kinds of office or place shall be made from those persons whose fitness for the place and ability to perform its duties have been determined upon a certain prescribed examination or test. While this limits the range of such appointments, it no more does so than does the general requirement-whether expressed in the power of appointment or not--that appointees shall be from those who are suitable for, and competent to, perform the duties of the place. And this has never been thought to unduly restrict any power of appointment. (25 Op. Atty. Gen. 341, 342-343, Jan. 18, 1905.)

"And I deem it equally certain that when a general law prescribes what persons may be appointed to any class or kind of office or place, the time or manner of their appointment, the tenure of their office, their qualifications or the test of their qualifications and fitness, any appointment of that kind thereafter authorized, must unless otherwise provided, be made with reference to and in conformity with the requirements of such general law. I think it a mistake to suppose that, in order to bring such appointments within the purview of the general law, it would be necessary to state specifically in the act authorizing them, that they are to be made as thus prescribed, or as provided by law, or that such idea be expressed in any form. On the contrary, I' think that in order to exempt such appointments from the operation of the general law, a specific exemption there from would be required." (25 Op. Atty. Gen. 341, 343, Jan. 18, 1905. See also 26 Op. Atty. Gen. 502, 504-505, Feb. 12, 1908.)

"The civil service act provided a comprehensive scheme for determining the relative merit and fitness of certain classes of persons applying for positions in the public service. It authorized the President to extend the classification from time to time as he might see fit, and to promulgate such rules as might be necessary for carrying the act into effect. It further created a Commission of three members, which was charged with the duty of assisting the President in preparing the rules which were to provide for open competitive examinations. The general management of these examinations has been, by every set of rules promulgated in accordance with this provision, vested wholly in the Commission. The whole object of the Commission's existence is to determine who shall be eligible for appointment to positions in

the Government service," (26 Op. Atty. Gen. 260, 261, May 25, 1907. See also 28 Op. Atty. Gen. 393, 394395, Aug. 1, 1910.)

"In section 7 of the civil-service act it is said: 'Nothing herein contained shall be construed * * * to take from the President any authority not inconsistent with this act conferred by the seventeen hundred and fifty-third section' of the Revised Statutes. This clause does not repeal section 1753, nor does it reenact that section. The statutes are in pari materia; they may be construed together. They constitute a legislative expression that the President is authorized to prescribe rules and regulations for the civil service which shall be in conformity to the provisions of the civilservice act." (28 Op. Atty. Gen. 112, 115, Dec. 22, 1909.)

"By the Civil Service Act (Act of January 16, 1883, 22 Stat. 403) Congress established the general principle that appointments to positions in the public service should be made according to merit, and that no-one should be appointed until he had passed an examination designed to test his capacity and fitness for office. To that extent the discretion of the appointing officer was limited. But the President was vested with discretion to determine whether or not, because of the peculiar qualifications required for some positions, the efficiency of the public service would best be promoted by leaving to the discretion of the appointing officer the method of determining the appointee's fitness for office." (32 Op. Atty. Gen. 273-274, July 19, 1920.)

"Section 1753 of the Revised Statutes and the Civil Service Act of January 16, 1883 (c. 27, 22 Stat. 403, 406; 5 U.S. C. 631-633; 17 Op. 621, 623; 28 id. 112, 115), authorize the President to make regulations for the admission of persons into the civil service of the United States, to ascertain the fitness of candidates, and to prescribe (with the assistance of the Civil Service Commission) rules in accordance with stated fundamental principles, to make such rules effective 'as nearly as the conditions of good administration will warrant,' and to make modifications and prescribe exceptions." (37 Op.Atty. Gen. 7, 12, June 10, 1932.)

"When Congress provides that a position shall not be subject to the provisions of the Civil Service Act and Rules, it discloses its intention that a person appointed to such a position shall not be entitled to the benefits of the Civil Service Act and Rules with respect to his employment in the excepted position. Accordingly, he is not while holding such position entitled to the benefits of the Retirement Act nor to security of tenure he would have enjoyed had the position not been excepted by law. But there is nothing in the action of Congress in excepting the position by law which indicates a purpose of Congress that the employee shall not be entitled to acquire or retain a status under the civil service laws. Such a status has no effect upon his tenure or rights with respect to the excepted-by-law position, and is in no way inconsistent with the statutory provision that the position shall not be subject to the Civil Service Act or Rules." (37 Op. Atty. Gen., supra, at 13.)

Civil Service Commission. - "The Civil Service Commission was created by act of Congress approved January 16, 1883. It is not attached in any wise to any of the Executive Departments, nor is it subject in any wise to the control of any of the heads of those departments. There is nothing in the act

constituting the commission which makes it subject to any regulation or control except that of the President himself." (22 Op. Atty. Gen. 62, 63, May 4, 1898.)

Civil Service Rules.- "Section 2 of the CivilService Act makes it the duty of the Commissioners to aid the President, as he may request, in preparing suitable rules for carrying the act into effect; and makes it the duty of all officers of the United States in the different Departments and offices to which the law and the rules relate to aid in all proper ways in carrying said rules and any modification thereof into effect. The scope of the rules in their bearing upon the classified service as to competitive and non-competitive examinations, the filling of vacancies and other matters, is then indicated." (23 Op. Atty. Gen. 595, 597-598, Dec. 2,

1901.)

"Section 2 of the civil-service law provides for 'open competitive examinations.' I think that this phrase implies the privilege of competition in every citizen not specially excepted by law. If this view be correct, then if an applicant can show 'actual, bona fide residence' at the time of applying, for the period required, and can obtain the required certificates to that fact, he is entitled to demand an examination. The President and commissioners can make all reasonable regulations as to the nature of the testimony required. If a question of fact is presented by the papers the decision of the Commission is conclusive; but I do not think that the Commission can narrow the definition of the statutory phrase. (20 Op. Atty. Gen. 649, 651, Aug. 29, 1893.)

The President may waive the requirements of the Civil Service Rules in order to avoid injustice in a particular case. (20 Op. Atty. Gen. 64, Apr. 8, 1891.)

The civil-service act authorizes the making of special exceptions from certain fundamental provisions of the rules promulgated thereunder, provided the exceptions are set forth in connection with the rules and the reasons there for stated in the annual reports of the Civil Service Commission. (26 Op. Atty. Gen. 460-461, Nov. 15, 1907.)

"Congress may, at any time it deems proper, exempt any position or any class of positions from the operation of the act, out to do this it must use language indicating clearly and affirmatively its intention that the civil service rules should not be applied." (26 Op. Atty. Gen. 502, 507, Feb. 12, 1908.)

Appointments and promotions in classified civil service.- "Section 7 of the act provides that no officer or clerk shall be appointed, and no person shall be employed to enter or be promoted in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examination or is shown to be specially exempted from such examination in conformity herewith; and then proceeds to express certain preferences and exceptions relative to this requirement." (23 Op. Atty. Gen. 595, 598, Dec. 2, 1901.)

"Section 7 provides that the following three classes of persons shall not be required to be classified, namely: (1) Officers other than those in the executive branch of the service; (2) persons employed merely as laborers or workmen, and (3) persons who have been nominated for confirmation by the Senate." (26 Op. Atty. Gen. 363, 365-366, Sept. 3. 1907.)