Section 1222, R. S., provides:

"No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated."

This, it was held, did not apply to officers on the retired list because limited in terms to those "on the active list." Section 1223, R. S., provides:

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Any officer of the Army who accepts or holds any appointment in the diplomatic or consular service of the Government shall be considered as having resigned his place in the Army, and it shall be filled as a vacancy."

This, as it did not distinguish between them, was held to apply to officers on the retired as well as to officers on the active list. The court, having reference to the two sections quoted, said:

"No officer, whether on the active or retired list, could accept appointment in the latter (diplomatic or consular service) and remain an officer, but that rule was not applied to retired officers in the matter of holding a civil office."

This case is in direct contravention of the Duane case. It holds that a retired officer is an officer within the meaning of that word in statutes defining eligibility to civil office.

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What constitutes service in the Army was considered in another aspect in United States v. Morton (112 U. S. 1). The question presented was whether the period passed by a cadet in study at West Point could be computed as actual time of service in the Army," and the question was answered in the affirmative. The case of United States v. Tyler, supra, was cited approvingly, and the result of the two cases is that an officer of the Army is in the service of the Government from the time of his appointment as cadet. until by resignation, death, or otherwise he is "wholly retired" therefrom.

The case of Geddes v. United States (38 Ct. Cl. 428), is cited as declaring a different rule. It arose under a very

different statute, viz, section 2, act of March 3, 1885 (23 Stat. 353, 356), which provides:

"That no part of the money herein or hereafter appropriated for the Department of Agriculture shall be paid to any person, as additional salary or compensation, receiving at the same time other compensation as an officer or employee of the Government."

Geddes was a captain of Infantry on the retired list. He served and received compensation as chief clerk of the Department of Agriculture. The question in the case was as to his right to receive pay as such clerk and as a captain on the retired list. The Court of Claims divided in opinion, three to two, the majority holding that he was. The majority said (p. 445):

"To bring a retired officer of the Army within the inhibition of the statute it is plain that he must be an officer or employee of the Government' within its intent; that his unofficial life after retirement must be regarded, within the intent of the statute, as service; that his three-fourths retired pay must be 'salary as compensation' for such service. It is well settled that an officer on the retired list owes no service to the Government in time of peace; that if called into service in time of war he returns thereby to the active list and receives full pay; that there is but one military office which he can hold, that of superintendent of the Soldiers' Home; and that his reduced retired pay is but an honorary form of pension to be paid him when, having reached a certain age, it is presumed that he is no longer well fitted to render active service to the Government."

This reasoning, as the minority hold, is in direct conflict with that of United States v. Tyler, supra, and can not be accepted as a correct statement of the law.

Other cases in the Court of Claims plainly indicate that this tribunal would hold an Army officer retired from active service to be, within the meaning of section 1782, an officer in the employ of the Government.

Section 5498, Revised Statutes, provides:

"Every officer of the United States, or person holding any place of trust or profit, or discharging any official func

tion under, or in connection with, any Executive Department of the Government of the United States, or under the Senate or House of Representatives of the United States, who acts as an agent or attorney for prosecuting any claim against the United States, or in any manner, or by any means, otherwise than in discharge of his proper official duties, aids or assists in the prosecution or support of any such claim, or receives any gratuity or any share of or interest in any claim from any claimant against the United States, with intent to aid or assist, or in consideration of having aided or assisted, in the prosecution of such claim, shall pay a fine of not more than five thousand dollars or suffer imprisonment not more than one year, or both.”

This section is certainly close akin to section 1782, and the principle of construction should be the same as to each. It was moved in the Court of Claims (18 Ct. Cl. 25) to admit Capt. Tyler, the same officer who was claimant in the case in 105 United States, 244, as assistant counsel in the prosecution of certain claims against the Government. The motion was denied. The court said (pp. 27 and 28):

"Mr. Warden submitted an oral argument, and also a printed brief, in support of his motion, in which he took the position that it is proper to construe this provision as contemplating only persons in the active service of the Government; and that to apply it to the case of retired officers, at least as far as practice in the courts of justice is concerned, would be an utter violation of the spirit and intent of the enactment. And he urges, in the support of these positions, that a mischief was intended to be remedied by this provision, and that the mischief was one which could not be done by retired officers, but only by persons in the active service of the Government; and therefore that retired officers are not within the purview of the law.

"We do not feel authorized to concur in these positions."

The question arose again on a motion to admit Col. William Winthrop as counsel in a case pending in the

Court of Claims, 31 Ct. Cls. 35. The motion was denied, the court saying (pp. 39 and 40):

"It is argued that a retired officer of the Army is not in a position to assist in or connive at frauds against the United States, and so is not within the mischief aimed at by the statute.

"The statute is not restricted to officers prosecuting claims arising within the purview of their duties, nor even arising in a department with which they are connected, or in which they may be supposed to exercise some influence, but it expressly includes 'every officer of the United States * who acts as an agent or attorney for prosecuting any claim against the United States, or in any manner, or by any means, otherwise than in the discharge of his proper official duties, aids or assists in the prosecution or support of any such claim,' etc.

* *

"This entirely excludes the idea urged in behalf of the motion that retired officers are not subject to its provisions because they are not in a position to commit frauds in the prosecution of claims.

"Besides, we can not say that Congress did not consider it unbecoming and improper in any and every officer of the United States,' whatever his position might be, to engage in the business of 'claim agent' or attorneys. in prosecuting claims against the Government indepentently of the temptations and opportunities to commit fraud."

My conclusion is that an officer of the United States Army or of the Marine Corps, retired from active service only, and not wholly retired from service, is an officer in the employ of the Government, and so within the prohibition of section 1782 of the Revised Statutes.

Respectfully,

Approved.

F. W. LEHMANN,
Solicitor General.

GEORGE W. WICKERSHAM.

THE SECRETARY OF THE NAVY.

CIVIL SERVICE-DISTRICT OF COLUMBIA.

Under existing laws the classified service of the United States can not be extended to the officers and employees of the District of Columbia.

Opinion of April 28, 1898 (22 Op. 59), concurred in.

DEPARTMENT OF JUSTICE,

May 17, 1912.

SIR: I have the honor to reply to your letter of March 27 requesting an opinion upon the following question: Whether it is possible for you, as President, to extend the classified service to employees of the District of Columbia?

This same question was presented by President McKinley to Mr. Attorney General Griggs, who advised (22 Op. 59) that the authority did not exist.

After a thorough reexamination of the subject I have come to the same conclusion.

The provision of the civil-service act (22 Stat. 403) authorizing the extension of the classified service is subsection 3 of section 6, which reads as follows:

"That from time to time said Secretary, the Postmaster General, and each of the heads of departments mentioned in the one hundred and fifty-eighth section of the Revised Statutes, and each head of an office, shall, on the direction of the President and for facilitating the execution of this act, respectively revise any then existing classification or arrangement of those in their respective departments and offices, and shall, for the purposes of the examination herein provided for, include in one or more of such classes, so far as practicable, subordinate places, clerks, and officers in the public service pertaining to their respective departments not before classified for examination."

The District is not one of the "departments mentioned in the one hundred and fifty-eighth section of the Revised Statutes," for the word is there explicitly limited to the executive branches headed by Cabinet officers. (See also 26 Op. 210, and 18 Op. 161.)

The question, then, is whether the District is an "office " within the meaning of the section. At best it would involve a somewhat forced construction of that word to extend it so far, and rather the contrary inference is to be