right of appointment necessarily involves the right of removal. This power is absolute, except in so far as restricted by Congress. The civil-service act limits the power of removal in no respect, except for the single cause of failure to contribute money or services to a political party. An employee's fitness, capacity, and attention to his duties are questions of discretion and judgment to be determined by the heads of the departments. Such questions are beyond the power of any court. (Taylor v. Taft, Secretary of War, 24 App. D. C., 95.)

Where a charge of delinquency, such as neglect of duty, has been sustained by a department, the commission refuses to hold that the removal was for political reasons. (Minute of commission, June 4, 1903.)

In the case of the United States v. Wickersham the United States Supreme Court decided, April 2, 1906, that Mr. Wickersham was entitled to compensation from November 1, 1897,

the date on which he was illegally suspended, in violation of the civil-service rules, from a classified position by the surveyor general of Idaho, until May 10, 1898, the date on which the department offered him another position at Washington, which he declined. The court said in part: "The case comes to this: The appellee, by his appointment, practically made by the Secretary of the Interior in entering his name in the classified list and designating him for the service required, was entitled to the privileges and emoluments of his position until he was legally disqualified by his own action or that of some duly authorized public authority. The attempted suspension, without authority of law, he remaining ready and willing to discharge the duties of the place, could not during the period of such wrongful suspension have the effect to deprive him of the compensation legally belonging to one entitled to hold the position." (201 U. S., 390.)

RULE XIII.-REPORTS OF CHANGES.

officers to make.

cl. 2, par. 8.

1. Every nominating or appointing officer in the execu-Appointing tive civil service shall report in detail to the commission, Act, sec. 2, whenever and in such manner as it may prescribe, all changes in the service under his authority, whether they .affect positions or employees that are classified, unclassified, excepted, permanent, temporary, or subject to

contract.

List of all

of duties of laborers.

2. Such officers shall also furnish to the commission, positions. when requested, a list of all the positions and employments under their authority, together with the names, designations, compensations, duties, and dates of appointment or employment of all persons serving therein. 3. Reports of appointments and changes in status of Statements mere laborers or workmen shall be accompanied by a statement setting forth specifically the kind of labor performed in detail sufficient to enable the commission to determine the status of each position as classified or unclassified; and a similar statement of duties performed by any employee or pertaining to any position in the executive civil service shall be furnished to the commission on request. All essential changes of duties per-Changes of taining to persons appointed as mere laborers or workmen without examination under the civil-service rules shall be at once reported to the commission.

See notes under Rule II, section 5.

duties.

Duty of officers and em

gard to.

cl. 4.

RULE XIV.-TESTIMONY.

It shall be the duty of every officer and employee in ployees in re- the executive civil service, and of every applicant or Act, sec. 2, eligible for a position therein, to give to the commission, or its authorized representatives all proper and competent information and testimony in regard to matters inquired of arising under the civil-service act and rules, and to subscribe such testimony and make oath or affirmation to the same before some officer authorized by law to administer oaths.

It is within the power of the President so to modify the civil-service rules as to impose upon all officers and employees in the public service the duty of giving to the commission or its authorized representatives all proper and competent information in regard to all matters inquired of and to subscribe to and make oath to such testimony before some officer authorized by law to administer oaths. The imposition of such a duty upon every officer and employee in the public service is neither unreasonable nor unsuitable. It is clearly within the exercise of the executive power, and its legality can not be doubted. (Opinion Atty. Gen., Dec. 2, 1901, 23 Op., 595.)

A per diem employee of the Frankford Arsenal, Philadelphia, Pa., absent from duty three and one-fourth hours

conditional

pointment.

Act, sec. 7.

under a summons, in giving testimony
concerning alleged violations of the
civil-service regulations, was denied
payment for the time he was away
from his regular work, because the
duty performed in giving testimony
was considered by the Ordnance De-
partment as having no relation to his
service as an employee therein. The
Comptroller of the Treasury held, how-
ever, that he "should be treated as in
a duty status and as in the perform-
ance of duty under his employment in
going, returning, and attending on the
commission, and should be paid the
pay due him for such time from the
appropriation for the Ordnance serv-
ice governing his employment."
cision, Compt. Treas., Aug. 17, 1911.
See also 17 Comp. Dec., 584; 5 Comp.
Dec., 797; 9 Comp. Dec., 276.)

RULE XV.-WITHHOLDING SALARY.

(De

Compensation If the commission shall find that any person is holding upon legal ap- a position in violation of the civil-service act or of the rules promulgated in accordance therewith, it shall, after notice to the person affected and an opportunity for explanation, certify the facts to the proper appointing officer. If such person be not dismissed within 10 days thereafter, it shall certify the facts to the proper disbursing and auditing officers, and such officers shall not pay or audit the salary or wages of such person thereafter accruing: Provided, That if a question of law respecting the power to appoint or employ is raised in any such case, the President or the head of a department may obtain the opinion of the Attorney General thereon.

"The decisions are uniform that one claiming salary must prove his legal title to the office and that an officer de facto can not maintain an action for salary." (Glavey v. U. S., 35 Ct. Cls., 242, citing Romer v. U. S., 24 Ct. Cls.,

336; Stratton v. Oulten, 28 Cal., 51; Bennett's case, 19 Ct. Cls., 388.)

See note to Rule II, section 5. A person employed by a marshal as his office deputy, without having been certified by the commission as eligible

RULE XVI.-REGULATIONS.

1. The commission shall have authority to make regulations for the execution of these rules.

2. No modification of the existing regulations in the Navy-yard Navy Department governing the employment of labor at navy yards shall be made without the approval of the commission.

SCHEDULE A.

CLASSIFIED POSITIONS EXCEPTED FROM EXAMINATION UNDER RULE II, SECTION 3.1

[The classified service does not include positions under the government of the District of Columbia, the Library of Congress, the legislative and judicial branches, the Consular and Diplomatic Services, or the Pan American Union.]

No office or position is excepted unless it is specifically named herein. Not more than one position shall be treated as excepted under the title of any such position unless a different number be indicated.

I. THE ENTIRE CLASSIFIED SERVICE.

1. Two private secretaries or confidential clerks to the head of each of the executive departments and one to each assistant head and one to the Public Printer.

2. One private secretary or confidential clerk to each of the heads of bureaus, appointed by the President in the executive departments, if authorized by law. 3. All persons appointed by the President without confirmation by the Senate. 4. Attorneys, assistant attorneys, and special assistant attorneys. 5. Chinese, Japanese, and Hindu interpreters.

6. Any person receiving for his personal salary compensation aggregating not more than $300 per annum whose duties require only a portion of his time, or whose services are needed for very brief periods at intervals, provided that employment under this provision shall not be for job work such as contemplated in section 4 of Rule VIII. The name of the employee, designation, duties, rate of pay, and place of employment shall be shown in the periodical reports of changes; and in addition, when payment is not at a per annum rate, the total service rendered and the distribution of such service during the year shall be shown in the report of changes at the end of each year or when the employee is separated from the service.2

7. Any person employed in a foreign country under the State Department, or temporarily employed in a confidential capacity in a foreign country under any department or office; but this exception shall not apply to any person employed in a foreign country contiguous to the United States in the service of the Bureau of Immigration, Department of Labor.

8. Positions the duties of which are of a quasi military or quasi naval character, when in the opinion of the commission they can not be filled from registers of eligibles.

9. All positions in Alaska which can not be filled from appropriate existing registers, except those in the Customs Service.

1 See positions also excepted by law and by Executive order from examinations and the civil service act and regulations on pp. 88, 92.

As amended Oct. 14, 1911.

As amended Jan. 10, 1918.

10. A person serving under temporary appointment continuously since May 29, 1899, may be permanently appointed, in the discretion of the appointing officer. 11. A person holding an excepted position, which he entered prior to November 2, 1894, and in which he has since served continuously, may, subject to the other conditions and provisions of these rules, be transferred to a competitive position. 12. Mechanics and skilled tradesmen or laborers,1 employed upon construction or repair work in the field services, under such restrictive conditions that, in the opinion of the commission, they can not, as a class, be appointed from registers of eligibles.

13. Cooks, when in the opinion of the commission it is not expedient to make &ppointment upon competitive examination.

14. One driver of carriage, each, for the personal use of the President, the head of any executive department, the Secretary to the President, and such other drivers of carriages as may from time to time be authorized by competent authority, may be appointed without reference to the civil-service rules or the labor regulations.

15. All officers and employees in the Federal service upon the Isthmus of Panama, except those who are to perform the duties of clerk, bookkeeper, stenographer, typewriter, surgeon, physician, trained nurse, or draftsman. Appointments to clerical positions on the Isthmus of Panama paying not more than $75 in gold per month may be made without examination under the civilservice rules.3

II. STATE DEPARTMENT.

1. Officers to aid in important drafting work."

2. Assistant solicitors."

III. TREASURY DEPARTMENT.*

1. One confidential clerk, if authorized by the Secretary of the Treasury, to each of the following officers:

The collector of each customs district where the receipts for the last preceding fiscal year amounted to as much as $500,000.

The appraisers at the ports of Boston, New York, and Philadelphia.

One private secretary in the office of the naval officer of customs at the port of New York.

2. One counsel before the Board of United States General Appraisers.

3. In the New York customs district: Stitch counters."

4. Revoked.8

5. One private secretary or confidential clerk to the superintendent in each mint and in the assay office at New York."

1 Skilled laborers. Unskilled laborers are not within the scope of the act and rules.

2 This exception applies to chauffeurs as well as to drivers of carriages. (Minute of commission, Jan. 30, 1908.)

3 Amendment of Apr. 5, 1918.

66

4 See excepted positions in this department under heading The Entire Classified Service."

5 As amended Aug. 24, 1912, and Mar. 22, 1917.

As amended Aug. 24, 1912.

As amended June 12, 1911.

Storekeepers and gaugers, Internal Revenue Service, whose compensation did not exceed $3 per diem when actually employed and whose aggregate compensation did not exceed $500 per annum were excepted from examination. This provision was revoked in view of the decision of the department to make no further appointments. (Executive order, Feb. 21, 1917.)