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the amendment providing that the railway company “shall within three months after the passage of this act file with the Secretary of War their acceptance of this act, together with plans and specifications of the said bridge, and said plans and specifications shall have been approved by the Secretary of War and the Chief of Engineers; otherwise this act shall be null and void."
In my judgment the purpose of this proviso was to make the legalization of the bridge depend upon
the company's ability to file within three months after the passage of the act plans and specifications of the bridge which would meet with the approval of the Secretary of War and the Chief of Engineers, and the discretion of those officers is, I think, in no wise limited by the fact that the bridge was already constructed.
The legislative history of the act shows that Congress made no inquiry into the question whether the interests of navigation could properly be subordinated to the use of the bridge as already constructed, and the act itself indicates the intention of Congress to leave that question to the usual authorities on such matters—the Secretary of War and the Chief of Engineers.
The only information which Congress can be presumed to have had on this subject is contained in the report of the Committee on Interstate and Foreign Commerce. From that report it appeared that, "although, on account of its faulty construction, the bridge is likely to be the cause of future complaint on the part of navigation interests,” the Chief of Engineers and the Secretary of War were willing that a bill legalizing the bridge should be passed, provided it contained a provision safeguarding the interests of the public. While the committee thought proper to omit such a provision from the amended bill, it nevertheless made the validity of the act depend upon the ability of the company to file plans and specifications of the bridge within three months after the passage of the act which would meet with the approval of the Secretary of War and the Chief of Engineers. For aught that was brought to its attention, it is possible Congress thought the bridge might readily be altered so as to meet with the approval of the Secretary of War and the Chief of Engineers, or that the officers mentioned might be willing to approve the bridge as it stood, in view of their power, under section 4 of the act of March 23, 1906, to require the alteration of the bridge at some future time if it should prove, in practice, to be an unreasonable obstruction to navigation. In any event, it is clear that Congress did not intend to legalize the structure if it did not meet with their approval.
I can see nothing in the act which justifies the construction that Congress intended to "require the Secretary of War to approve the bridge as built, with possibly such minor changes as can be readily made," as suggested in your first question. The most that can be said is that the act is permissive on this subject, and authorizes the Secretary of War and the Chief of Engineers, in the due exercise of their power and discretion, to approve the bridge as built, with such minor changes as could be readily made therein. To hold otherwise would be to say that Congress intended to legalize the bridge although found by the officers referred to to be an unreasonable obstruction to navigation. In view of the established policy of Congress, as illustrated by the act of March 23, 1906, to require the alteration of all bridges across navigable waters of the United States deemed by the Secretary of War and the Chief of Engineers to be unreasonable obstructions to navigation, I do not think it should be held that Congress intended to legalize any bridge which was such an obstruction in the opinion of these officers, unless its purpose so to do appears in clear and unmistakable language. In the present case the language of the act conveys exactly the opposite impression, as it expressly makes the validity of the act dependent upon the approval of the plans and specifications of the bridge by the Secretary of War and the Chief of Engineers.
Referring specifically to your second question, I beg to say that, under all the circumstances of this case, you would be authorized to approve the bridge in question if, after such alterations as might be readily made therein, it could be fairly held to satisfy the present needs of navigation, leaving the prospective needs of navigation to be dealt with under the general authority to require the alteration of such structures to meet the needs of navigation given you by the act of March 23, 1906. It will be observed that the act of February 15, 1910, gives the consent of Congress to the maintenance and operation of the bridge and its approaches in accordance with the provisions of the act of March 23, 1906. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF WAR.
CIVIL SERVICE-EXAMINATION OF TEMPORARY EMPLOYEE
IN CENSU'S OFFICE FOR POSITION IN APPORTIONED SERVICE OF THE GOVERNMENT.
A person employed in the temporary force of the Census Office, in an
apportioned position and charged to the quota of his State, is not required by the proviso of section 7 of the act of July 2, 1909 (36 Stat. 3), to return to his State to take an examination for another position in the apportioned service of the Government.
DEPARTMENT OF JUSTICE,
June 17, 1910. Sır: In accordance with your request of the 11th instant, I have the honor to submit my opinion upon the question presented to you by the Civil Service Commission in their communication of the same date, as to the necessity for a person in the temporary force of the Census Ollice returning to his State to take an examination for a position in the apportioned service of the Government, in view of the restriction as to the place of examination contained in the first proviso to section 7 of the act approved July 2, 1909 (36 Stat. 1).
Section 6 of that act authorizes the appointment by the Director of the Census of an additional force “during the decennial census period, and · no longer.” Section 7 provides:
“That the additional clerks and other employees provided for in section six shall be subject to such special test examination as the Director of the Census may prescribe, the said examination to be conducted by the United States Civil Service Commission, the examination to be
open to all applicants without regard to political party affiliations, and such examination shall be held at such places in each State as may be designated by the Civil Service Commission. Copies of the eligible registers so established and the examination papers of all eligibles shall be furnished the Director of the Censusby the Civil Service Commission, and selections therefrom shall be made by the Director of the Census, in conformity with the law of apportionment as now provided for the classified service, in the order of rating: 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:
It will be observed that the Director of the Census is required by the above section to make selections from the eligible registers “in conformity with the law of apportionment as now provided for the classified service, in the order of rating.” In respect to this provision, the Civil Service Commission states:
“The Department of Commerce and Labor, with the concurrence of the Commission, construed this language as not requiring the Bureau of the Census to take into consideration the present status of the apportionment of other government employees in making selections under the law of apportionment for the temporary census service. The result is that the apportionment of the additional census force is separate and distinct from the apportionment of other appointments in the departments at Washington, D. C."
After calling attention to the fact that in my opinion of November 15, 1909 (28 Op. 78), it was held that the first proviso to section 7 had reference only to the apportioned service of the Government, the commission says:
“In harmony with this opinion and the apparent purpose of the restrictions, it is the Commission's view that these restrictions do not apply to a person who is already in an apportioned position and charged to the quota of
his State and who desires to enter an open competitive examination for appointment to another position in such service. This seems to the Commission the reasonable view, because the application of the domicile restrictions to such a case would not seem to serve any purpose; such a person being already charged to the quota of his State, if he should receive a new appointment in the apportioned service as a result of the second examination, a duplicate charge, as a matter of course, would not be made to his State.”
The question now presented is thus stated by the Commission:
“Mrs. Blanche M. Sell is now serving in the census force as a result of being examined in Minnesota and charged to the quota of that State under the apportionment of that force. Mrs. Sell has applied for admission to an open competitive examination for the position of botanical artist in the Department of Agriculture; that is to say, for a position under the apportionment but under the apportionment separate from that for the census force. Under the ruling and practice of the Commission as hereinbefore indicated, the domicile restrictions of the first proviso of section 7 of the census act would not be applied to a person applying for this examination if such person were already charged to the quota of his State under the same apportionment in which this position is included. On the other hand, all persons in nonapportioned positions in Washington desiring to enter open competitive examinations for positions in the apportioned service are required to return to the States of their residence for the purpose of taking the examinations.
"The question upon which the opinion of the AttorneyGeneral is desired is:
“Upon the facts stated and under the provisions of the statute may Mrs. Sell, a resident of Minnesota, take the open competitive examination for the position of botanical artist in the Department of Agriculture, elsewhere than in the State of Minnesota ?”
Notwithstanding the fact that there are two separate and distinct rules of apportionment-one for certain ap