Mr. DEMING. I presume there are some at this time. Senator BROOKHART. It would be a good thing for us to have the information as to how many are on the eligible list from all of the States who have not been appointed. Have you that information? Senator HEFLIN. You have got that information, have you not? Mr. DEMING. Oh, yes. Senator HEFLIN. I would like to have that information for Alabama, of all those who have been examined and are eligible and have not been appointed. Mr. DEMING. All right. The CHAIRMAN. It seems to me all this talk about amending the law is beside the question, if there are eligibles who have not been appointed. Senator BROOKHART. In that case somebody should be impeached for not appointing them, and appointing others who are not entitled to the appointments. Senator HEFLIN. My suggestion is to fix the law so that a certain State can not have more than a certain number. You stop when you fill that number. That might be a good provision. The resolution provides, Mr. Deming, that we shall investigate and report on illegal appointments and dismissals from the civil service. What do you understand that to mean? Mr. DEMING. Well, I would assume, just in general terms, from that resolution, that if one were dismissed because of a political consideration, that would be illegal; if one were dismissed on a religious consideration, that would be illegal. Senator HEFLIN. Well, it says appointments and dismissals. Senator HEFLIN. It says appointments and dismissals; illegal appointments and dismissals. What do you understand by that-illegal appointments? Mr. DEMING. I am sure, Senator, I don't know just what you had in mind. Senator HEFLIN. What we meant were those people that you have appointed above the quota in Maryland, Virginia, and Washington. Mr. DEMING. No; that would not be illegal, Senator, because of this fact Senator HEFLIN (interposing). Does it not violate the spirit of the civil service act? Mr. DEMING. No, sir. The civil service act of January 16, 1883, provides in section 2, paragraph 2: And among other things, such rules shall provide and declare, as nearly as the conditions of good administration will warrant, as follows: Third. Appointments to the public service aforesaid in the departments at Washington shall be apportioned among the several States and Territories and the District of Columbia upon the basis of population as ascertained at the last preceding census. Every application for an examination shall contain, among other things, a statement, under oath, setting forth his or her actual bona fide residence at the time of making the application, as well as how long he or she has been a resident of such place. Now, our construction of that is that it is not mandatory. It simply directs what the rules to be promulgated by the President as to the civil service shall contain. In other words, the statutory directions are to be followed "as nearly as the conditions of good administration will warrant." There is a discretion, therefore, left the President to modify the statutory direction if in his judgment such action shall be required for the purposes of good administration. Senator BROOKHART. I have a complaint of this kind, that in July, 1926, a reduction was made in the public debt and income-tax divisions of the Treasury Department, and that several hundred employees from States whose quotas were in arrears were discharged from those two divisions, while more than that number from those above their quota were retained in those two divisions. Mr. DEMING. I did not know about that. Senator BROOKHART. Well, under the law would you have any jurisdiction over that whatever in the Civil Service Commission? Mr. DEMING. I think not. I think our apportionment list is for the original appointments. Mr. DOYLE. Yes. Senator BROOKHART. Evidently there is a violation of the spirit of the law there. But again, it would be in the Treasury Department and not in the Civil Service Commission, would it not, Senator Heflin? I do not know whether these alleged facts are true. You do not know, Mr. Deming? Mr. DEMING. No; I do not know whether they are true, Senator. Senator BROOKHART. I do not have any information to disclose whether they are true or not. Could you find out from your records whether they are true or not? Mr. DEMING. I suppose if every record were checked as to every employee, as to when he was appointed, and how long he served, and when he was removed, we might have that information. Senator HEFLIN. Did you not furnish that information last year to a committee of the Senate? Mr. DEMING. I think we furnished some information to the committee. I do not recall just what it was. Senator BROOKHART. This does say that the report of the Civil Service Commission to the Senate Čivil Service Committee shows that in July, 1926, a reduction of the force took place in the publicdebt and income-tax divisions of the Treasury Department. Have we that report? I do not know whether we have or not. It says that several hundred employees from States whose quotas were in arrears were discharged from those two divisions, while more than that number who had above the quota were retained. There is a case, it seems me, if the law is carried out, the reductions should have been made if they had more than their quota. to Mr. DEMING. But that is an administrative matter within that particular department, under the law, as the apportionment applies, as I said before, to the original entry into the service, and not the retention in the service. Senator BROOKHART. The law should have required them to be retained. Senator HEFLIN. Yes; I think that would be a good amendment. Senator BROOKHART. And here is another point that is made. This report shows that then additional appointments were made at reduced salaries soon after the reduction of the force. In other words, they took them back in after reducing them, but at reduced salaries, or some of them. Mr. DEMING. It might be observed in the record that reductions in force are presumed to be made in relation to the efficiency of the respective employees. Senator BROOKHART. That might be all right after the rights of the States are respected, as provided by law, but under the law requiring that they should be apportioned in proportion to the population of the States, that efficiency rule should not be used as a blanket then over all the States. Mr. DEMING. In other words, you would attach greater weight to the condition of the apportionment than you would to the efficiency of the employees? Senator BROOKHART. I would attach greater weight to the law that requires them to be apportioned among the different States than I would to individual matters. Otherwise there is no use having that law. If you get an administrator in a department who comes from New York, he could then put out everybody else because his people are more efficient. And this law was made to prevent a thing like that. Senator HEFLIN. Does not the civil service act provide that the Civil Service Commission shall investigate these irregularities in the departments? Mr. DEMING. I think, in general terms, if we have a complaint we endeavor, in the first instance, to determine whether it is a complaint concerning a matter of which we have jurisdiction. And we are very prompt to make the necessary inquiry and investigation. As I said before, even in many cases in which we have no direct jurisdiction, we send a representative of the Civil Service Commission to the chief of the department, or to the appointing officer, to ascertain whether the facts are as stated to us by the complaining employee; to ascertain, if possible, if any relief is to be found-if the case is deserving. We go that far. Senator HEFLIN. How many employees in the Government service who were from States whose quotas were not filled have been discharged because of reductions made since the war? Mr. DEMING. I have not those details here. May I ask Mr. Bartlett, or Mr. Morgan, to answer that question, if they can? I appointed a special committee for the arrangement of the statistics on this inquiry. Mr. Bartlett is chairman of that committee. I would like to ask Mr. Bartlett if we have anything of that kind. Mr. BARTLETT. No; I have not. Mr. DEMING. Mr. Bartlett is chief of the appointment division, Senator Heflin. Senator HEFLIN. I would like to ask him to furnish that information. Mr. BARTLETT. May I have a statement just what you do want, from the committee, or will I take a note of it here? Senator HEFLIN. Just take the question I asked of Mr. Deming, which he referred to you for answer. Mr. DEMING. Senator, I wonder if in that connection you would like to have this table which I have here. Senator HEFLIN. Just another point before I come to that. How many District people, I mean those employed in the Government service here, have been appointed since the war? I would like to have that information, too, if you have not got it. Mr. DEMING. We will make a note of that. Senator HEFLIN. And you said a while ago that the act did not seem to be mandatory. What is the reason for that? Why is not the act mandatory? Mr. DEMING. The very language of the act seems to imply that. The second paragraph of section 2 says: And among other things, said rules shall provide and declare, as nearly as the conditions of good administration will warrant It being foreseen that there would be instances or contingencies in which the exact application of the rule, particularly the apportionment rule, would obstruct the orderly conduct of the business of the Government. For instance, in the condition we have before us now, of the States not supplying sufficient eligibles, we can not stop the machinery of the Government until we get the eligibles. I have here a statement of the provisions of the second paragraph of section 2 giving eight fundamental provisions of the act, which I will read for the record. (The statement referred to is as follows:) THE CIVIL SERVICE ACT OF JANUARY 16, 1883, AND THE APPORTION MENT The second paragraph of section 2 of the civil service act sets forth eight fundamental provisions in language, in part, as follows: Second. And among other things, said rules shall provide and declare, as nearly as the conditions of good administration will warrant, as follows: First, for open, competitive examinations for testing the fitness of applicants for the public service now classified or to be classified hereunder. * * * Second, that all the offices, places, and employments so arranged or to be arranged in classes shall be filled by selections according to grade from among those graded highest as the results of such competitive examinations. Third, appointments to the public service aforesaid in the departments at Washington shall be apportioned among the several States and Territories and the District of Columbia upon the basis of population as ascertained at the last preceding census. * * * Fourth, that there shall be a period of probation before any absolute appointment or employment aforesaid. Fifth, that no person in the public service is for that reason under any obligations to contribute to any political fund, or to render any political service, and that he will not be removed or otherwise prejudiced for refusing to do so, Sixth, that no person in said service has any right to use his official authority or influence to coerce the political action of any person or body. Seventh, there shall be noncompetitive examinations in all proper cases before the commission, when competent persons do not compete. * * * Eighth, that notice shall be given in writing by the appointing power to said commission of the persons selected for appointment or employment from among those who have been examined, * * * And any necessary exceptions from said eight fundamental provisions of the rules shall be set forth in connection with such rules, and the reasons therefor shall be stated in the annual reports of the commission. No one of the eight provisions is given any preference over the others. That no one of them is to be construed as absolute regardless of the interests of the service is shown both by the introduction, "as nearly as the conditions of good administration will warrant"; and by the conclusion, " any necessary exceptions from said eight fundamental provisions of the rules shall be set forth in connection with such rules, and the reasons therefor shall be stated in the annual reports of the commission." Mr. DEMING. I also have a brief statement of a part of that second paragraph, with a comment with reference to its not being mandatory, as follows: The civil service act of January 16, 1883, provides in section 2, paragraph 2— And among other things, said rules shall provide and declare, as nearly as the conditions of good administration will warrant, as follows: Third, appointments to the public service aforesaid in the departments at Washington shall be apportioned among the several States and Territories and the District of Columbia upon the basis of population as ascertained at the last preceding census. Every application for an examination shall contain, among other things, a statement, under oath, setting forth his or her actual bona fide residence at the time of making the application, as well as how long he or she has been resident of such place. This statutory direction as to rules is not mandatory. Section 2 of the civil service law merely directs what the rules to be promulgated by the President shall contain. They are not mandatory or absolute, for the statutory directions are only to be followed "as nearly as the conditions of good administration will warrant." A large discretion is, therefore, left to the President to modify the statutory directions if in his judgment such action should be required for the purpose of good administration. Nor are the statutory rules exclusive, for it is provided that "among other things the rules shall provide as set forth in the statute. (See Johnson v. United States (1905), 26 App. D. C. 128.) Thus the President is given wide power to supplement the statutory rules by others not specifically covered by the statute. Senator HEFLIN. Where vacancies do occur and you have to make other appointments, do you take the matter up with those States that have eligibles? Mr. DEMING. Senator, may I introduce Miss Carlson, of the division of appointments, and let her explain? Miss Carlson is of the division of appointments, Senator. The Senator wishes to know, Miss Carlson, how we operate in the States which are in arrears when there is a vacancy to be filled. Miss CARLSON. I have here a statement which shows very clearly our method of procedure. Mr. DEMING. That statement might go in the record? (The statement referred to is as follows:) ORDER OF CERTIFICATION--MINUTE 5, MAY 14, 1910, AND MINUTE 1, NOVEMBER 8, 1926 All States in arrears down to and including__ All States in arrears down to and including. First group in excess (subject to change) Delaware down to and including 73 Vermont down to and including__ All States in arrears down to and including First group in excess (subject to change) Delaware down to and including 70 Vermont down to and including Virginia down to and including. Maryland down to and including District of Columbia down to and including. 70 39513-29- -2 |