§ 355. “Any Such Officer Who is not Retained.”
The rights of an officer of a transferred department differ accordingly as he is “retained” or “not retained” in the service of the Commonwealth, and it becomes important to define exactly what is meant by these expressions. Is the executive government of the Commonwealth required to make any express declaration of retainer or non-retainer? And if so, when must its choice be made?
It is clear, in the first place, that the Federal Government has an option to retain, or not to retain, any officer; and it is also clear that such option cannot easily be exercised at the actual moment of transfer—at least with regard to the departments transferred at the establishment of the Commonwealth. It would seem, also, that the fact of transfer does not alter the obligation upon each officer to continue, as a servant of the Crown, to perform the duties of his office; though he is subject thenceforth to the control, not of the State, but of the Federal Government. Every officer of the department becomes “subject to the control” of the Federal Government, but every officer is not necessarily “retained in the service of the Commonwealth.” Apparently, therefore, the option of retaining or not retaining an officer is one which the Federal Government may exercise within a reasonable time after transfer, and the mere fact that the Government assumes the control and accepts the services of an officer at the outset need not necessarily imply a decision to retain him. On the other hand, acquiescence by the Federal Government for any time longer than was reasonably necessary might fairly be held, in the absence of a definite notification to the contrary, to imply a decision to retain an officer in the service.
In respect of a State officer who is “not retained in the service of the Commonwealth,” the Commonwealth has no liability whatever. His only claim for compensation is against the State, which is under a constitutional obligation to treat him as though his office had been abolished by the Government of the State.