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."

Under this statute, eligibility of an applicant for examination is conditioned upon actual residence, for a stated period, within the delivery of the post office to which the appointment is to be made or within the "city or town" where the post office is situated.

From the documents and other information submitted to me I understand the facts to be as follows: In the State of Connecticut the primary political divisions of the counties are called "towns." See 16th Census of the United States, 1940, Population, VI, p. 181. Cheshire is one of the towns in the County of New Haven. Within the boundary of the Town of Cheshire are the villages of Cheshire and West Cheshire. Thus, Town of Cheshire or Cheshire is the name of a political division of the County of New Haven, and Cheshire is also the name of a village within the Town of Cheshire. The village of Cheshire is not coextensive with the boundary of the Town of Cheshire. Each of the villages of Cheshire and West Cheshire has its own post office, the office at Cheshire being of the second class, and the office at West Cheshire being of the third class. A vacancy exists in the post office at Cheshire. West Cheshire is not within the delivery area of the office at Cheshire.

The question is whether a resident of the village of West Cheshire is eligible for appointment as postmaster of the post office of Cheshire. The Civil Service Commission holds that he is not.

In opposition, it has been urged upon the Commission that since the act of June 25, 1938, uses the words "city" and "town" and since the locality surrounding and including both Cheshire and West Cheshire is a "town" within the laws of the State of Connecticut, residents of the "town" are eligible for postmastership at either Cheshire or West Cheshire.

The position taken by the Commission accords with its previous interpretation of the statute as shown in the Commission's Minute dated May 8, 1939. (See Civil Service Act,

Rules and Regulations, Annotated, pp. 379.01-380.) The Commission's letter dated May 23, 1945, states in part:

"In 1939 the Commission had occasion to consider the application of the residence requirement contained in the Act of June 25, 1938 in connection with examinations for postmaster in 'townships' as constituted in some of the Midwestern States and 'towns' in New England States. These 'townships' and 'towns' consist of several communities each of which has its own post office. Thus, it was ascertained through investigation at that time that the town' of Falmouth, Massachusetts, comprises the communities of Falmouth Heights, Hatchville, North Falmouth, Teaticket, Waquoit, West Falmouth and Woods Hole, each of these communities having a post office of its own. As a result of its study the Commission adopted the interpretation recorded in Minute 3 of May 8, 1939, which reads:

"PRESIDENTIAL POSTMASTER RESIDENCE-INTENT OF THE ACT OF JUNE 25, 1938, WITH REGARD TO CITIES AND TOWNS

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""The Commission holds that residence merely within a township boundary, as constituted in certain Midwestern States, or within a "town" of the New England type, is not sufficient in itself to qualify an applicant with respect to residence for postmaster at the post office which bears the name of such township or "town." The applicant must actually reside within the delivery of the particular post office in the township or "town" for which the examination is held or within the geographical limits of the city or village in which the post office is located.'

"In adopting this interpretation the Commission was convinced, as it is now, that the words 'city' and 'town' as used in the Act of June 25, 1938, were not intended to include county subdivisions such as townships of the Midwestern type or towns as they are constituted in New England. It was clearly the intent of Congress that competition in examinations for postmaster at offices of the first, second, and third classes be limited to residents of the particular community in which the post office is located. Any other interpretation would have extended competition for postmasterships in

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