arising under the food and drugs act, may be contracted for at a rate per diem which would, if continued for a whole year, amount to more than $3,500.

The Comptroller of the Treasury has ruled (Decisions of the Comptroller, Vol. XV, p. 757) that the fees of expert witnesses in cases of this character are properly payable from the appropriation made for the Department of Agriculture, styled "General expenses, Bureau of Chemistry (35 Stat. 1049). The act of March 4, 1907 (34 Stat. 1280), making appropriation for the Department of Agriculture for the fiscal year ending June 30, 1908, contained the following proviso:

"Provided, That the maximum salary of any classified scientific investigator in the city of Washington, or other employee engaged in scientific work, shall not exceed three thousand five hundred dollars per annum.”

Section 2687 of the Revised Statutes reads as follows: "Collectors and all other officers of the customs, serving for a less period than a year, shall not be paid for the entire year, but shall be allowed in no case a greater than a pro rata of the maximum compensation of such officers respectively for the time only which they actually serve as such collectors or officers, whether the same be under one or more appointments, or before or after confirmation. And no collector or other officer shall, in any case, receive for his services, either as fees, salary, fines, penalties, forfeitures, or otherwise, for the time he may be in service, beyond the maximum pro rata rate provided by law.

"And this section shall be applied and enforced in regard to all officers, agents, and employees of the United States whomsoever, as well as those whose compensation is determined by a commission on disbursements, not to exceed an actual maximum, as those paid by salary or otherwise."

The question is whether witnesses giving expert testimony on behalf of the Government in cases of the character above mentioned are employees engaged in scientific work, within the meaning of the proviso of said act of 1907, and if so, whether the amount of compensation which may be

received by them is limited by the provisions of said section 2687, Revised Statutes.

I am of the opinion that such persons do not fall within the meaning of the term "employee," as used in either of said statutes.

In Louisville, etc., R. R. Co. v. Wilson (138 U. S. 501, 505), it was insisted on behalf of the defendant in error that he was entitled to have paid him a certain sum as attorney's fees under an order of court directing the receiver to pay "salaries of officers and wages of employees" that had accrued within a specified time. The court held that Wilson did not fall within the meaning of the term "employee" as used in said order, and in passing upon this question used the following language:

"The terms officers' and 'employees' both alike refer to those in regular and continual service. Within the ordinary acceptation of the terms, one who is engaged to render service in a particular transaction is neither an officer nor an employee. They imply continuity of service, and exclude those employed for a special and single transaction. An attorney of an individual, retained for a single suit, is not his employee. It is true, he has engaged to render services; but his engagement is rather that of a contractor than that of an employee. The services of appellee, therefore, did not come within the order appointing the receiver."

See also Vane v. Newcombe (132 U. S. 220, 237); Frick Company v. Norfolk & O. V. R. Co. (86 Fed. 725, 738).

I think the language of the court in Louisville, etc., R. R. Co. v. Wilson is equally applicable to the meaning of the word "employee" as used in the statutes above cited, and that it does not embrace an individual whose services have been contracted for in connection with a particular case in court, and with reference to whose employment there is no degree of permanency.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF AGRICULTURE.

CIVIL SERVICE-CENSUS ACT OF 1909-DIPLOMATIC AND CONSULAR SERVICE.

The proviso of section 7 of the census act of July 2, 1909 (36 Stat. 3), has no reference to examinations for positions in the diplomatic and consular service which are not in the departments at Washington. The phrase "from any State or Territory" in that proviso refers to applications where it is requisite that the applicant should be of a particular State or Territory and charged to it under the law of apportionment, which is the case only with respect to appointments in the classified service in the departments at Washington and in the Census Bureau.

A construction of a statute which would go beyond the evil intended to be remedied and produce apparently unforeseen and untoward results should be avoided.

Opinions of August 18, 1909 (27 Op. 546, 567), are modified to the extent above indicated.

DEPARTMENT OF JUSTICE,

November 15, 1909.

SIR: Under date of the 11th instant, you asked to be advised whether the following proviso of section 7 of the census act approved July 2, 1909 (36 Stat. 3), applies to the examinations leading to appointment as secretary in the diplomatic service, consul, consular assistant, or student interpreters:

"Provided, That hereafter all examinations of applicants for positions in the government service, from any State or Territory, shall be had in the State or Territory in which such applicant resides, and no person shall be eligible for such examination or appointment unless he or she shall have been actually domiciled in such State or Territory for at least one year previous to such examination."

In connection with this matter, your letter presents the following facts:

The mode of appointment of secretaries of embassy and legation is fixed by an order of the President, dated November 10, 1905, which provides that

66* * * vacancies in the office of secretary of embassy or legation shall hereafter be filled:

"(a) By transfer or promotion from some branch of the foreign service; or

(b) By the appointment of a person who, having furnished satisfactory evidence of character, responsibility, and

capacity, and being thereupon selected by the President for examination, is found upon such examination to be qualified for the position."

The mode of appointment of consuls-general, consuls, consular assistants, and student interpreters is governed by an order of the President, issued June 27, 1906, which provides that vacancies in the office of consul-general and in the office of consul above class 8 shall be filled by promotion from the lower grades of the consular service or by transfer of persons in the Department of State receiving $2,000 per annum or more, and that—

"2. Vacancies in the office of consul of class 8 and of consul of class 9 shall be filled:

"(a) By promotion on the basis of ability and efficiency as shown in the service, of consular assistants and of vice-consuls, deputy consuls, consular agents, student interpreters, and interpreters in the consular or diplomatic service, who shall have been appointed to such offices upon examination.

"(b) By new appointments of candidates who have passed a satisfactory examination for appointment as consul as hereafter provided.

"11. It shall be the duty of the board of examiners to formulate rules for and hold examinations of persons designated for appointment as consular assistant or as student interpreter * * *"

The board of examiners for the diplomatic service consists of the Second Assistant Secretary of State, the Solicitor for the Department of State, and the Chief of the Diplomatic Bureau of the department, or the persons for the time being respectively discharging the duties of said officers.

The board of examiners for the consular service, as named by the order of the President, consists of the Secretary of State, or such officer of the Department of State as the President shall designate (at present the Third Assistant Secretary of State), the Chief Clerk of the Department of State, and the chief examiner of the Civil

Service Commission, or some person whom said commission shall designate.

The examinations for the diplomatic and consular service have always been held in the city of Washington. In regard to such examinations you say:

"They consist of two parts, oral and written. The object of the oral examination is to determine the candidates' alertness, character, address, command of English, and, in general, their personal fitness for the service. While it is quite practicable for the written examinations to be held in the legal residences by officials of other branches of the Government stationed therein, it can be readily seen that the other and important functions of the members of the boards would preclude them from making personal tours of the country to conduct the oral examinations, and that the object of the oral examination would largely be lost if this duty should be designated to officials of other branches of the Government stationed at points. where the examinations were to be held. Such officials would naturally not have adequate opportunity to become fully conversant with the standards required by the boards."

In this connection you further state:

"I also desire to submit for your consideration the fact that if the provisions of section 7 are found to be applicable to examinations for the foreign service, many men now holding subordinate positions in the service abroad who would, in the usual course, later be designated for and take the examinations in order to become eligible for promotion to the commissioner personnel, would be ineligible for the examination because of their failure, due to their official duties, to have been actually domiciled in the State or Territory of their legal residence for at least one year previous to their examination. With the absence of the incentive of promotion, the department would doubtless be handicapped in its obtaining the type of men it needs in the subordinate positions in its offices abroad."

The above-quoted proviso of section 7 of the census act was considered by me in my opinions to the President and the Secretary of the Interior of August 18, 1909 (27 Op.