FILLING VACANCY IN OFFICE OF POSTMASTER

The act of June 25, 1938, placing postmasters of the first, second, and third classes in the classified civil service, does not authorize the Civil Service Commission to fix a time limit within which the President must fill a vacancy in the office of such a postmaster.

The PRESIDENT.

APRIL 10, 1939.

MY DEAR MR. PRESIDENT: I have the honor to refer to the memorandum of your Secretary, Mr. Stephen Early, dated March 30, 1939, transmitting a letter of the Civil Service Commission of the same date and requesting that if there is no objection on the part of this Department the opinion of the Attorney General requested by the Commission be rendered.

The letter of the Civil Service Commission reads:

"We have the honor to request that an opinion be secured from the Attorney General as to the interpretation and application of the act of June 25, 19381 (Public, No. 720, 75th Congress), providing for the inclusion of first-, second-, and third-class postmaster positions in the classified civil service. "Since a difference of opinion exists between the Post Office Department and this Commission as to the interpretation of certain provisions of the statute, a ruling of the Attorney General seems desirable. A memorandum of points and authorities discussing the legal issues involved is inclosed herewith."

The memorandum reads in part:

"The act of June 25, 1938, provides as follows:

""That postmasters of the first, second, and third classes shall hereafter be appointed in the classified service without term by the President by and with the advice and consent of the Senate: Provided, That postmasters now serving may continue to serve until the end of their terms, but they shall not acquire a classified civil service status at the expiration of such terms of office except as provided in Section 2 hereof.

"SEC. 2. Appointments to positions of postmaster at first-, second-, and third-class post offices shall be made by the re

152 Stat. 1076.

appointment and classification, noncompetitively, of the incumbent postmaster, or by promotion from within the Postal Service in accordance with the provisions of the Civil Service Act and Rules, or by competitive examination, in accordance with the provisions of the Civil Service Act and Rules. No person shall be eligible for appointment under this section unless such person has actually resided within the delivery of the office to which he is appointed, or within the city or town where the same is situated for one year next preceding the date of such appointment, if the appointment is made without competitive examination; or for one year preceding the date fixed for the close of receipt of applications for examination, if the appointment is made after competitive examination.

"SEC. 3. Appointments of acting postmasters in all classes of post offices shall be made by the Postmaster General: Provided, That acting postmasters shall serve not to exceed six months from the date of their designation, except that the Postmaster General may extend the period of service of any acting postmaster beyond such six months' period with the permission of the Civil Service Commission.'

"A question has arisen

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as to whether there is any specific period after the expiration of an existing term of office within which the Post Office Department must proceed with the regular filling of the vacancy.

"Two existing statutes must be taken into consideration in reaching a determination of this question. The acts of March 1, 1921, and June 10, 1921, provide as follows:

"Whenever the office of any postmaster becomes vacant, the Postmaster General1 or the President shall supply such vacancy without delay, and the Postmaster General shall promptly notify the General Accounting Office of the change; and every postmaster and his sureties shall be responsible under their bond for the safekeeping of the public property of the post office, and the due performance of the duties thereof, until the expiration of the commission, or

1 Postmasters of the fourth class are appointed by the Postmaster General, U. S. C., title 39, sec. 31.

until a successor has been duly appointed and qualified, and has taken possession of the office; except that in cases where there is a delay of sixty days in supplying a vacancy, the sureties may terminate their responsibility by giving notice, in writing, to the Postmaster General, such termination to take effect ten days after sufficient time shall have elapsed to receive a reply from the Postmaster General; and the Postmaster General may, when the exigencies of the service require, place such office in charge of a special agent until the vacancy can be regularly filled; and when such agent shall have taken charge of such post office, the liability of the sureties of the postmaster shall cease.' (U. S. C., title 39, sec. 38; R. S., sec. 3836; March 1, 1921, c. 88, sec. 1, 41 Stat. 1151; June 10, 1921, c. 18, sec. 304, 42 Stat. 24.)

"It is further provided in an act reported in section 39, title 39, U. S. C.:

"Whenever the office of a postmaster becomes vacant through death, resignation, or removal, the Postmaster General shall designate some person to act as postmaster until a regular appointment can be made by the President in case the office is in the first, second, or third class, and by the Postmaster General when the office is in the fourth class; and the Postmaster General shall notify the General Accounting Office of the change. The postmaster so appointed shall be responsible under his bond for the safekeeping of the public property pertaining to the post office and the performance of the duties of his office until a regular postmaster has been duly appointed and qualified and has taken possession of the office. Whenever a vacancy occurs from any cause the appointment of the regular postmaster shall be made without unnecessary delay. A person who, upon the occurrence of a vacancy and pending the appointment of a postmaster or the designation of an acting postmaster, assumes and properly performs the duties of postmaster at any thirdor fourth-class post office shall be allowed compensation as postmaster for the period of such service ** ** (U. S. C., title 39, sec. 39; March 1, 1921, c. 88, sec. 1, 41 Stat. 1151; June 10, 1921, c. 18, sec. 304, 42 Stat. 24; April 22, 1937, c. 122, 50 Stat. 71.)

"There seems to be derivable from these two provisions a distinction between a vacancy occurring upon the expiration of a postmaster's commission and a vacancy occurring because of the death, resignation, or removal of a postmaster. Under section 38 of the U. S. Code as quoted above, it is indicated that a postmaster, on the expiration of his term, should hold over in office until his commission expires or until a successor is duly appointed, qualified, and takes possession of the office.

"Section 39 of the Code provides for the creation of an acting postmastership only when the office is vacated by the death, resignation, or removal of a postmaster. Since the act of June 25, 1938, provided, as of that date, for the inclusion of Presidential postmaster positions in the classified service, it was necessary for Congress to establish for incumbent postmasters not having a civil service status a legal right to continue in civil-service positions after June 25, 1938. This was accomplished by the proviso that 'postmasters now serving may continue to serve until the end of their terms.' The interposition of title 39 of the Code enumerating the specific and exclusive conditions under which acting postmasterships may be created would seem to preclude the creation of acting postmasterships so far as the hold-over incumbents are concerned because the office has not been vacated by one of the three conditions named in the statute-death, resignation, or removal. Further, under the provisions of title 38 of the Code, hold-over postmasters are charged with certain responsibilities as to the safeguarding of public property entrusted to their care and to the discharge of the duties of the office until replacement is made by a duly appointed successor.

"At this point it may be argued that the procedure outlined in title 38 of the U. S. Code charging the hold-over postmaster with the continued operation of the office and requiring appointing officials to proceed without delay in supplying the vacancy, includes authority for the hold-over incumbent's retention without regard to his civil-service status. Should this interpretation be adopted, however, the

plain intention of the act of June 25, 1938, to bring postmasterships into the classified civil service could partially fail of its purpose by nonaction by the appointing authority as to the reappointment of a duly qualified candidate at the expiration of existing terms. Under such an interpretation, hold-over postmasters without civil-service status could continue to occupy civil-service positions indefinitely and there would be no authority in the Commission to require the terminations of such appointments and the filling of the positions under the alternative processes described in section 2 of the act of June 25, 1938. For this reason, and to effectuate what it conceives to be the fundamental objective of this statute, the Commission has adopted the view that at the expiration of an existing term, the continued occupancy of a postmastership by a hold-over incumbent could and should be regarded as authorized by the continuing provisions of Civil Service Rule VIII, under which a person without civil-service status can be temporarily assigned to a civil-service position, pending the regular filling of the vacancy. The acceptance of this interpretation would provide the Commission with the authority to place a time limit on the temporary incumbency and to require the filling of the position through regular methods, by withdrawing authority for further temporary appointment.'

Thus it appears that the question upon which the Civil Service Commission desires the opinion of the Attorney General may be stated as follows:

"Does the Civil Service Commission, in view of the provisions of the act of June 25, 1938, have authority to fix a time limit within which the President must act to fill a vacancy in an office of postmaster of the first, second, or third class?"

On this question attention is invited to the opinion of Attorney General Miller to the Postmaster General, dated August 22, 1892 (20 Op. 447). That opinion dealt with the status of James Hill, Postmaster at Vicksburg, Miss., and with the liability of the sureties on his bond. Mr. Hill, under date of June 2, 1891, had been given a recess appointment as such postmaster by the President, his commission to continue until the next session of the Senate and no longer.