ceeded in the administration of the Retirement Act by the Civil Service Commission, which since that time has likewise abided by it.

With respect to such clerks an opinion of the Solicitor of the Post Office Department dated July 11, 1925 (7 Op. Sol. P. O. Dept. 576), held that the employment of a clerk in a third-class post office is a matter of private contract between the postmaster and the employee, that such clerk is not an employee of the Federal Government, and therefore is not entitled to immunity from State employment and labor laws. I am informed by the present Solicitor of that Department that a number of other opinions, unpublished, reaching similar conclusions respecting clerks of both thirdand fourth-class post offices have been rendered by his predecessors, and that the Department has consistently adhered to this view in the administration of the laws applicable to such clerks.

It may be that in the beginning arguments could have been advanced against the above constructions of the statutes applicable to special-delivery messengers and to clerks in third- and fourth-class post offices. These interpretations, however, have been uniformly followed for many years, in some instances for more than half a century, by the divers departments charged with the administration of the statutes and no objection has been voiced by the Congress. A contemporaneous, uniform, and long-continued construction of a statute by the department of the Government charged with its administration, under which rights have been determined and adjusted, is not to be disturbed in the absence of compelling reasons; Robertson v. Downing, 127 U. S. 607; United States v. Philbrick, 120 U. S. 52; United States v. Hill, 120 U. S. 169, 26 Op. A. G. 390; and I find no such reasons here.

It is my opinion, therefore, that under the circumstances both questions presented by the Civil Service Commission should be answered in the negative.

Respectfully,

HOMER CUMMINGS.

ELIGIBILITY OF MEMBER OF OFFICERS' RESERVE CORPS TO HOLD CIVIL OFFICE

Sec. 1222 R. S. does not prohibit appointment of an Army officer on the active list to a civil office, but acceptance of such office vacates his commission in the Army.

The section is inapplicable, under circumstances stated, to an officer of the Reserve Corps on leave of absence with pay from active duty with the Army.

Sec. 2, act of July 31, 1894, prohibiting the holding of more than one office, is inapplicable where the annual compensation attached to each office amounts to less than $2,500.

The PRESIDENT.

OCTOBER 26, 1938.

MY DEAR MR. PRESIDENT: I have the honor to refer to the letter of the United States Civil Service Commission dated August 19, 1938, requesting that you obtain my opinion upon certain questions therein stated. Since they relate to an employee in the Department of Agriculture and his status as an officer in the Officers' Reserve Corps, the views of the Secretaries of Agriculture and War have been secured.

From the documents submitted to me it appears that for some time before and until December 26, 1935, Mr. Raymond L. Morris, a second lieutenant, Infantry Reserve, Officers' Reserve Corps, was on active duty with the Civilian Conservation Corps at a camp near Albuquerque, N. Mex.; that he was granted leave of absence with pay for the period commencing with December 26, 1935, and ending with January 16, 1936; that on the latter date he was returned to inactive status; and that on December 26, 1935, while on such leave of absence, he was appointed, without civil service classification, a junior agronomist in the Soil Conservation Service of the Department of Agriculture, took the oath of office and entered upon the duties of that position. Presumably to avoid any question respecting receipt of more than one salary, Mr. Morris refunded the compensation received from the Soil Conservation Service for the period from December 26, 1935, to January 16, 1936.

The Civil Service Commission considers that if the appointment of Mr. Morris was valid and he legally held the

position in the Soil Conservation Service from December 26, 1935, he acquired a status for classification in the civil service, pursuant to the provisions of the act of April 27, 1935, c. 85, sec. 4 (2), 49 Stat. 163, 164, and section 6 of Civil Service Rule II. The Commission believes, however, that section 1222 of the Revised Statutes rendered the civil and military positions heretofore described incompatible, with the result that the military status of Mr. Morris precluded civil employment of him in another branch of the Government. The Department of Agriculture feels that the civil appointment was legal but that acceptance of it by Mr. Morris vacated his commission as a Reserve officer. The Judge Advocate General of the Army, on the other hand, is of the opinion that an officer in the Officers' Reserve Corps of the Army, under the circumstances of this case, legally may be appointed to a civil office under the Government while on military leave of absence with pay from active duty with the Army.

The specific questions presented by the Commission are: "(1) Whether Mr. Morris was legally appointed to a civilian position while in an active duty status with the United States Army;

"(2) If such appointment could not legally have been consummated, whether any adjustment of military service may now be effected, such as retroactive termination, prior to December 26, 1935, and refund of appropriate salary; and "(3) If answer to (2) is in the affirmative, under what conditions?"

The pertinent statutory provisions are as follows:

"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." (R. S. sec 1222; U. S. C., title 10, sec. 576.)

"No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless

specially

* *

authorized thereto by law * * (Act of July 31, 1894, c. 174, sec. 2, 28 Stat. 162, 205, as amended; U. S. C., title 5, sec. 62.)

Section 1222 of the Revised Statutes does not make Army officers ineligible for or preclude appointment of them to civil office. In fact, it contemplates that they may accept civil appointments and prescribes the consequences: that by doing so they cease to be officers of the Army and vacate their commissions. It follows, therefore, that the appointment of Mr. Morris as junior agronomist was not prohibited even if it be assumed that within the meaning of the section while on active duty with the Army he was an officer of the Army on the active list and that the two offices under consideration are incompatible. The decisions of the Comptroller of the Treasury to which my attention has been called are not to the contrary (24 Comp. Dec. 502; 25 Comp. Dec. 666). They merely held that civil employment would not be authorized while officers continued to retain their commissions in the Army. The officers there involved had not accepted civil appointment and the consequences of so doing were not considered.

However, in my opinion section 1222 is not applicable to Mr. Morris because his status as a Reserve officer on active duty with the Army was quite different from that of an officer of the Regular Army on the active list. The distinction is evidenced by the various statutes respecting Reserve officers and the practice of the War Department over a period of many years.

The Army of the United States consists, among other branches, of the Regular Army and the Officers' Reserve Corps (act of June 15, 1933, c. 87, sec. 1, 48 Stat. 153). The Officers' Reserve Corps was created by section 37 of the National Defense Act of 1916 for the purpose of providing a reserve of officers available for military service when needed (act of June 3, 1916, sec. 37, as amended by sec. 3 of the act of June 15, 1933, supra, 48 Stat. 154). Appointments, which are for a period of 5 years, are made by the President alone in grades below that of brigadier general, and with the consent of the Senate in the case of general

officers (48 Stat. 154). Although Reserve officers are commissioned in the Army of the United States, they are Re serve officers and not officers of the Regular Army (48 Stat. 154). By virtue of their commissions or active duty with the Army they do not embark exclusively on military careers, and except during emergencies expressly declared by the Congress they may not be employed on active duty for more than 15 days in any 1 calendar year without their consent (sec. 37 (a) of the National Defense Act of 1916, as amended by sec. 32 of the act of June 4, 1920, c. 227, 41 Stat. 759, 776; U. S. C., title 10, sec. 369).

While not on active duty members of the Officers' Reserve Corps are not deemed to be officers or employees of the United States, or persons holding any office of trust or profit or discharging any official function under or in connection with any department of the Government (48 Stat. 154, 155, supra). Officers and employees of the United States or of the District of Columbia who are members of the Officers' Reserve Corps are entitled to leave of absence from their duties without loss of pay, time, or efficiency rating on all days not exceeding 15 in any 1 calendar year during which they are ordered to duty with troops or at field exercises, or for instructions, and when relieved are to be restored to the positions held when ordered to duty (act of May 12, 1917, c. 12, 40 Stat. 40, 72; U. S. C., title 10, sec. 371).

The statute contemplates that upon completion of their military service Reserve officers will be returned to their normal pursuits in civil life. Although they have elected to perform military service when needed, their vocations are in civil life and not in the Army. Unlike officers of the Regular Army, Reserve officers may be discharged at any time in the discretion of the President (48 Stat. 154, supra). Also, unlike officers of the Regular Army, they are not entitled to retirement or retired pay and are eligible for pensions only for disability incurred in line of duty while in active service or while serving with the Army (sec. 47 (b) of the National Defense Act of 1916, amended by sec. 34 of the act of June 4, 1920, c. 227, 41 Stat. 777, 778). Reserve officers are not entitled to military pay and allowances