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Midwestern 'townships' and New England 'towns' to residents of communities not connected with the particular post office in which the vacancy exists and this would have been applying to competitors in such 'townships' or 'towns' a different standard with respect to residence than to competitors in other cities or towns. Thus in the case of the communities comprising the town of Falmouth, Massachusetts, it would have been necessary to construe that residents of any of the communities in Falmouth could compete in examinations for postmasterships in any of the other communities of Falmouth, so that a person could be an applicant for postmaster in any or all of the seven Falmouth subdivisions. Obviously this would not have been in accord with the purpose of the Act to limit competition to residents of the particular community in which the post office is located."

The Post Office Department agrees with the Civil Service Commission that a person cannot meet the residence requirements of the act of June 25, 1938, "unless he is actually a resident of the city or village in which the post office is located, rather than the town or township in which, quite frequently, there are several post offices."

The act of June 25, 1938, is a general statute applicable to the appointment of postmasters at offices of the first, second, and third classes throughout the United States. The prescribed requirement is residence within the delivery of the post office or within the "city" or "town" where the office is situated. The word "town" is not defined in the statute and I find nothing in the legislative history indicating an intention on the part of Congress to use the word in other than its ordinary meaning, that is, a collection of houses making a distinct place with a name.

The legislative history of the act of June 25, 1938, seems to support the interpretation of the statute adopted by the Civil Service Commission. See 81 Cong. Rec. 514, 518, 519, 524, 530-532. One Senator suggested a case where an appointee might be greatly disliked "in his own community." Another Senator referred to the "community" in which an applicant lives. 83 Cong. Rec. 5194, 5206.

Section 2 of the act of June 25, 1938, was amended by the act of July 18, 1941, c. 308, 55 Stat. 599. Although the amend

ment is not pertinent to the present question, its history throws further light on the meaning of the word "town" as used in the act of June 25, 1938. In explaining the purpose of the act of June 25, 1938, Mr. Ramspeck, Chairman of the House Committee on the Civil Service stated (87 Cong. Rec. 5261):

"Prior to June 1938 the requirement of eligibility for appointment to the position of postmaster was that the person should be a patron of the office. The law was changed at that time and the requirement set up that he or she must be a legal resident of the community

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As indicated in the interpretation of the Civil Service Commission, the word "town" has a special meaning in the New England States. A "town" of the New England type may often include two or more villages or communities, each having its own post office. This is true in the present case where, within the Town of Cheshire, there are two separate post offices situated in the villages or communities of Cheshire and West Cheshire. In such a case it seems doubtful that the Town of Cheshire, as constituted under the laws of the State of Connecticut, is, within the meaning of the act of June 25, 1938, the "city or town" where the post office of Cheshire is situated.

I am advised that since 1939 the interpretation of the statute adopted by the Civil Service Commission has been consistently followed and that under it many examinations have been held and appointments made, with respect to post offices situated in villages or communities comprising parts of a "town" of the New England type. This practice is very persuasive, particularly since it must be known to many members of the Congress and apparently has not heretofore met with any objection. See 39 Op. A. G. 194, 196 (October 17, 1938), and cases there cited.

Accordingly, it is my opinion that, within the meaning of the act of June 25, 1938, residence in West Cheshire, Connecticut, does not satisfy the statutory requirement of residence within the city or town where the second class post office of Cheshire is situated.

Respectfully yours,

TOM C. CLARK.

RETIREMENT ACT-MEMBERS OF CONGRESS AND HEADS OF

DEPARTMENTS

The act of March 7, 1942, excluding from the Civil Service Retirement Act elective officers and heads of departments, brought within the Retirement Act by the act of January 24, 1942, was not intended to change the rule that a person who has a retirement status retains that status if he becomes a Member of Congress or the head of a department, without a break in service.

Any person appointed head of a department subsequent to January 24, 1942, who immediately prior to his appointment was subject to the terms of the Civil Service Retirement Act in a subordinate position, continues to be subject to the Retirement Act after becoming the head of a department.

Any person serving as a Member of Congress, who immediately prior to taking the oath of office as such, was a member of the retirement system, remains subject to the terms of the Retirement Act.

The PRESIDENT.

August 7, 1945.

MY DEAR MR. PRESIDENT: I have the honor to comply with your request dated June 2, 1945, for my opinion on the questions submitted by the Civil Service Commission concerning the status of certain heads of departments and Members of the Congress, under the Civil Service Retirement Act of May 29, 1930, as amended by the acts of January 24, 1942, and March 7, 1942, c. 16, sec. 3, 56 Stat. 13, 15; c. 166, sec. 16 (c), 56 Stat. 143, 147. The questions are:

"Does a person appointed to the position of head of a department subsequent to January 24, 1942, who immediately prior to such appointment was subject to the terms of the Civil Service Retirement Act in a subordinate position retain his retirement status in the position of head of department?

"Does a person serving as a Member of Congress, who immediately prior to taking the oath of office as such was a member of the retirement system, remain subject to the terms of the Retirement Act?"

I think it will give a clearer conception of the problem if I first show the development up to January 24, 1942, of the pertinent law on retirement and then discuss the effect of the January 24, 1942, and March 7, 1942, amendments to the Retirement Act.

The original Retirement Act of May 22, 1920, c. 195, sec. 1, 41 Stat. 614, which applied, with immaterial exceptions, to

"all employees in the classified civil service," specifically excepted from its scope "persons appointed by the Fresident and confirmed by the Senate." By the act of March 27, 1922, 42 Stat. 470, it was provided that the term "all employees in the classified civil service," as used in section 1 of the act of May 22, 1920, "shall be construed to include all persons who have heretofore or who may hereafter be given a competitive status in the classified civil service, with or without competitive examination, by legislative enactment, or under the civil-service rules promulgated by the President, or by Executive orders covering groups of employees with their positions into the competitive classified service or authorizing the appointment of individuals to positions within such service." The act of March 27, 1922, also provided that "the expression 'classified civil service' as the same occurs in other Acts of Congress, shall receive a like construction to that herein given."

In 1924 Attorney General Stone held in two opinions that a person possessing competitive status in the classified civil service might, under certain conditions, be transferred to a nonclassified position without loss of competitive or retirement status. This conclusion was based on the act of March 27, 1922, and on Rule X, Paragraph 3 of the Civil Service Rules promulgated by the President in 1919 under the provisions of the Civil Service Act. Rule X, Paragraph 3 provided:

"Any person may be retransferred to a position in which he was formerly employed, or to any position to which transfer could be made therefrom, if since his transfer he has been continuously in the executive or judicial civil service of the United States or of its insular possessions, or if he entered the classified service upon competitive examination and the legislative service by transfer therefrom, and is found by the Commission to have served continuously and satisfactorily."

In the first of these two opinions Attorney General Stone held that "Any person who has acquired a competitive status in the classified civil service retains that status so long as he remains continuously in the executive civil service, although he may have been or may be transferred to a nonclassified position." 34 Op. 192, 198 (June 3, 1924). In a second opinion Attorney General Stone held that the provision in the original Retirement Act excluding persons ap

pointed by the President and confirmed by the Senate did "not apply to those persons who, having acquired the competitive status in the classified civil service, are subsequently appointed to nonclassified positions by the President and confirmed by the Senate, so long as they remain continuously in the executive or judicial civil service of the United States." 34 Op. 334, 337 (December 22, 1924). See also 34 Op. 515; 35 id. 413.

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This rule of construction regarding retention of retirement status through continuity of service later received statutory recognition by the act of July 3, 1926, c. 801, sec. 3 (d), 44 Stat. 904, 906, which amended the Retirement Act by making it apply to "unclassified employees transferred from classified positions," provided their tenure of employment was not intermittent or of uncertain duration. See 10 Comp. Gen. 491. This provision was retained as part of section 3 (d) in the reenactment of the Retirement Act made by the act of May 29, 1930, c. 349, 46 Stat. 468, 471.

By the act of July 13, 1937, c. 494, sec. 1, 50 Stat. 512, as amended by the act of June 25, 1938, c. 698, 52 Stat. 1197, certain positions in the legislative branch of the Government were brought within the Retirement Act. On March 6, 1941, the Assistant Comptroller General advised the Civil Service Commission that the General Accounting Office would not question a determination by the Civil Service Commission that a former legislative employee retains his retirement status after becoming a Member of the House of Representatives, without any break in service. See 20 Comp. Gen. 509. Thus, prior to January 24, 1942, it was the uniform administrative practice under the Civil Service Retirement Act, as amended, that a person who had acquired a retirement status under the Retirement Act was eligible to retain that status upon his appointment without a break in service to a nonclassified office or position by the President and confirmation by the Senate. The same rule, although there appear to have been only two cases, was applied to a person who had a retirement status at the time he became a Member of Congress.

The act of January 24, 1942, c. 16, sec. 3, 56 Stat. 15, amended the Civil Service Retirement Act to bring within its coverage Members of Congress, heads of departments, and, with immaterial exceptions, persons holding unclassified posi

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