66 The cases quoted in point (a) were decided prior to August 24, 1912, when Congress placed certain restrictions on the power of the executive departments to discharge civil service employees except for such cause as will promote the efficiency of said service and for said reasons given in writing;" then further providing that "the person whose removal is sought shall have notice of the same and of any charges preferred against him." (The full text of this statute will be found on page 1, Civil Service Pamphlet entitled "Information Concerning Removals, Reductions, Suspensions, and Furloughs," already furnished the court.) It is our contention that this statute of August 24, 1912, has no application to the subject of "removals" when the removal is rendered necessary by the lack of work or funds. By the very terms of the statute, removals "for such cause as will promote the efficiency of said service and for reasons given in writing," are expressly excepted from the operation of the statute. Paragraph a, page 16, of the amended answer of the defendants filed herein sets forth that because of the necessary reduction in force, plaintiff's services were no longer needed and that funds for the payment of her salary were not available; that the reason given plaintiff in writing for her discharge was the real reason therefor, to wit, the necessary reduction in force which had been ordered." Certainly to reduce the number of civilian employees to conform to the amount of work to be done and to the amount of money available for their salaries is to promote the efficiency of (the service)." 66 No place in this legislation of August 24, 1919, has Congress used any language which could be construed as an inhibition to prevent the heads of executive departments, in the interests of economy and efficiency in government, from discharging surplus employees when there is no work for them to do or money to pay them with. The underlying reason of the legislation requiring the preferring of charges against an employee is that the employee has been guilty of something; when employees are regarded as surplus and therefore to be dropped from the rolls, it is not because they have committed any offense, but simply because, while competent to hold their positions, they are less competent than those with whom they are in competition. It is persuasive, although not controlling, of course, that the Civil Service Commission, the body charged with the duty of aiding the President in preparing suitable rules for carrying the civil service act into effect (sec. 2, act of January 16, 1883, 22 Stat. 403), construes section 6 of the act of August 24, 1912 (37 Stat. 555), as having no application to removals for the purpose of reduction in forcee; see particularly section 6 and section 13 of the civil-service pamphlet, already in possession of the court. * * * It is further contended by the plaintiff that the regulations of the Quartermaster Corps (more particularly secs. 196 and 210), in the regulations in force and effect at the time of her discharge (the printed volume of said regulations being before the court), show that her discharge was unlawful. The court will observe, on page 45 of said volume of regulations, the heading "Promotions and Efficiency Ratings," section 196 reads: "All promotions in the classified service," etc.; and while section 210 reads, "All promotions and other changes will be decided solely upon relative efficiency." Reading section 210 in reference to the heading of this series of regulations and the other sections of this series of regulations, we think the sections referred to do not apply to dismissals from the service. This contention, we think, is further strengthened by reference had to page 50 of the same regulations, entitled Separation from Service"; under section 228 of said heading on said page 50, we find that said section 228 is merely a more or less accurate copy of the act of August 24, 1912, and we further find, at the top of page 51, still under section 228 of the regulations, the following: Held, that the statute requiring notice in writing of the reasons for the removal of an employee in the classified service, does not apply to cases of removal occasioned by the fact that the services of the employee are no longer required, but only to cases where it is proposed to remove such employees for delinquency or misconduct. (Opin. J. A. G. Jan. 10, 1912; Bull. 4, W. D. 1913.) 66 66 If the contention of plaintiff was correct, that these regulations did apply, our answer would be that in Paragraph IX, page 8, the defendants allege as facts (which facts are admitted by the demurrer), "She was rated number 23 on the efficiency report for the six months ending December 31, 1919. Defendants have no knowledge as to whether or not the efficiency report for the period ending 39513-29-13 December 31, 1919, had actually been written up on February 23, 1920, plaintiff's relative efficiency on said last-mentioned date would properly be determined on the basis of the relative efficiency of plaintiff and the other employees in her class during the period subsequent to June 30, 1919, as known to her superior officers." (The court will remember that the plaintiff was discharged in February, 1920, and that, assuming the regulations to apply, her efficiency rating for the six months ending December 31, 1919, would apply); further referring to Paragraph XVIII of defendants' answer at the lower half of page 19, "That on the report for the six months ending December 31, 1919, plaintiff was rated number 23 in her grade * * * and the records show the two clerks in that grade whose relative standings were lower than that of plaintiff, were separated from the service, one on January 15, 1920, and the other on the date on which plaintiff was separated from the service." LACHES Regarding the other points of controversy in this matter, we contend that any rights that the plaintiff may have had have been lost through her own delay in looking to the courts for an enforcement of them. The plaintiff was discharged from the Government service on February 29, 1920, and no relief was sought by her in any court until March 1, 1926, when the original petition for mandamus was filed in this cause. In the case of the United States ex rel Arant v Lane (249 U. S. 367), the Supreme Court of the United States held, in affirming the judgment of our Court of Appeals (47 App. D. C. 336), that a delay of 1 year and 10 months after Arant's removal from office constituted laches on his part and that, regardless of the merits of the controversy, mandamus would not lie.. The Court of Claims, in another angle of the same case, Arant v. United States, of course, held that Arant's action for salary for the office from which he had been discharged could not be maintained. The record in this case shows, among other things, Paragraph V of defendant's answer, page 5, that the plaintiff herein had been repeatedly advised by the duly authorized subordinates of the defendant Secretary of War, that in his opinion the discharge was lawful. Plaintiff attempts to reason that because, on November 30, 1925, she wrote the Secretary of War who answered her on December 17, 1925, replying in substance that her claims had been previously considered by a number of Army officials, including his predecessor and the Quartermaster General, and that a reexamination of the records in her case showed conclusively that her discharge had been legal and that she had received all compensation to which she was entitled, that this act of the present Secretary of War relieved her of the charge of laches in the same manner that the acknowledgment of a debt, barred by the statute of limitations, could take the debt out of the statute; even if her reasoning were otherwise sound, she appears to have overlooked the fact that there was no acknowledgment from the Secretary of War, but that, on the contrary, he denied that the Government owed her any redress; in other words, her position is analagous to saying that if an alleged debt is denied by the alleged debtor, after the statute of limitations has run, this denial would take the claim out of the statute. The principle of law briefly adverted to by me in the argument of the demurrer, that courts will not restrain or review the exercise of discretion by the appointing power, except to enforce statutory restrictions, and will not interfere in or review cases of alleged violations of executive rules and regulations, is set forth in section 11, page 4 of the civil service pamphlet before the court, and the court will find a number of Federal cases sustaining that principle collected in Note 10, on the same page of the civil service pamphlet. For the convenience of the court, I attach hereto a copy of Mr. Justice Hoehling's memorandum rendered in the same cause. A copy of this memorandum has been furnished Miss King. LEO. A. ROVER, Senator BROOKHART. The committee will recess subject to the call of the chairman. (Whereupon, at 12.45 o'clcok p. m., the committee adjourned, subject to the call of the chairman.) APPOINTMENTS AND DISMISSALS IN THE CIVIL SERVICE MONDAY, FEBRUARY 18, 1929 UNITED STATES SENATE, SELECT COMMITTEE ON INVESTIGATION OF ILLEGAL Washington, D. C. The committee met, pursuant to the call of the chairman, in room 250, Senate Office Building, at 10.45 o'clock a. m., Senator Porter H. Dale presiding. Present: Senators Dale (chairman), Brookhart, Heflin, and George. The CHAIRMAN. The committee will come to order. This is a subcommittee considering Senate Resolution 154, introduced by Senator Heflin and reported by Senator Deneen, with amendments." Do you want to make any statement about it, Senator Heflin? Senator HEFLIN. No; except I stated on the floor of the Senate that when Congress adjourned last May we had had one or two meetings, and the members of the committee had to go home to look after other affairs, and that we did not finish our work, and we wanted more time in which to do that, so that we could make a report to the Senate at this session. A number of people, men and women in the departments, came to see me after this session convened asking that we have a meeting so that they could come and present some matters that they were very much interested in. I told them that we would have a meeting, and that is the reason that I suggested that we have it at this time, Mr. Chairman, so that we could air and make it known just what they had to say, and be heard upon it. Who will be the first to speak in regard to this matter? Miss ELVA HENSEL. Would you permit me to read a bill that was introduced in the Ohio State Senate? The CHAIRMAN. Yes. Please come forward. TESTIMONY OF MISS ELVA HENSEL, VAN WERT, OHIO The CHAIRMAN. Are you in the service? Miss HENSEL. No; I am not employed in the service. I am just here for the winter. I am a citizen of Ohio. This bill which I wish to read is introduced by Senator Schaefer in the Ohio Senate. Senator HEFLIN. How long is it? Miss HENSEL. It is just very short. Senator HEFLIN. And that is what you are interested in? Miss HENSEL. Yes; very much. This is from the journal of the senate and house of representatives; senate journal, senate chamber, Columbus, Ohio, Wednesday, January 30, 1929. [Reading:] Senate Resolution No. 25, memorializing United States Senate Civil Service Investigating Committee, in behalf of Ohio's quota of positions in the Federal service at Washington Whereas Ohio's quota of positions in the Federal service at Washington, as allowed by law, is one thousand nine hundred and ten, while on March 24, 1928, there only nine hundred and thirty-seven positions filled by residents of Ohio, while on June 20, 1919, there were two thousand one hundred and fiftyfour positions filled by Ohioans, or a reduction of one thousand two hundred and seventeen in less than nine years; and Whereas the quota of Federal positions of residents of the District of Columbia, as allowed by law, is one hundred and forty-five, while on March 24, 1928, there were twelve thousand six hundred and twenty residents of the District of Columbia in the Federal service; and Whereas in addition to the District of Columbia, the legal quota of the State of Maryland is four hundred and eighty, while two thousand three hundred and eighteen residents of that State were on the Federal pay roll on March 24, 1928, and while the legal quota of the State of Virginia is seven hundred and sixty-five there were two thousand four hundred and seventyseven positions in the Federal service held by residents of Virginia; and Whereas on July 1, 1919, twenty-six States had more than their quotas, but on March 24, 1928, none of them had their quotas, due to reductions of force, while during the same period appointments from the District of Columbia have more than doubled; and Whereas from July 16, 1927, to March 24, 1928, the District of Columbia received one thousand nine hundred and sixty-six appointments; and Whereas if the increases for the District of Columbia continues at that rate, in less than ten years it will have all the appointments: Therefore Resolved, That Ohio Senate shall go on record as protesting against this unfair discrimination in the apportionment of civil-service appointees in favor of the District of Columbia, of Maryland, and Virginia as against practically all the other States of the Union; and Resolved further, That a copy of this resolution be forwarded to Senator Porter H. Dale, chairman of the Senate Civil Service Investigating Committee, Washington, D. C., and to Hon. Simeon D. Fess, and to Hon. Theodore A. Burton, United States Senators from Ohio. Senator HEFLIN. We are glad to have you read that into the record. Miss HENSEL. I am not employed, but I am just so interested that this apportionment bill be introduced. Senator HEFLIN. Ohio is one of the States whose quota has not been filled. Miss HENSEL. Yes. Thank you very much. Senator HEFLIN. Glad to have heard you. Who is the next? STATEMENT OF LINCOLN WEDEL, WASHINGTON, D. C. Mr. WEDEL. My name is Lincoln Wedel, 1302 L Street NW., Washington, D. C. I have here this brief, Senator. Senator BROOKHART. You found it, did you? Mr. WEDEL. Yes. My counsel has stepped out for just a moment and I do not know just how to go about presenting the case. to offer this brief. (At this point Mr. Savage came into the hearing room.) Senator HEFLIN. Do you want to present this, Mr. Savage? Mr. SAVAGE. Yes. I want STATEMENT OF JOHN A. SAVAGE, WASHINGTON, D. C., REPRESENTING LINCOLN WEDEL Mr. SAVAGE. My name is John A. Savage, 1501 Vermont Avenue I am representing Mr. Wedel in this matter. I would like to NW. read this memorandum in connection with the proposed Senate bill, and then if there are any questions to be asked concerning it I would like to answer them. This is a memorandum to accompany proposed Senate bill for an act to compensate Lincoln Wedel; Seventieth Congress, second session. [Reading:] Lincoln Wedel, for whose compensation the proposed Senate bill is offered, served during the World War in the United States Marine Corps, from which he was on July 10, 1919, honorably discharged with character Excellent." On July 14, 1919, Mr. Wedel was appointed a clerk in the office of the Auditor of the Navy Department; on November 26, 1920, he was appointed a clerk in the office of the Commissioner of Internal Revenue; on February 7, 1921, Mr. Wedel was recommended for an appointment as auditor in the Income Tax Unit, Bureau of Internal Revenue, which appointment was subsequently made. The suspension: About December 6, 1923, Mr. Wedel received the following communication: Mr. LINCOLN WEDEL. TREASURY DEPARTMENT, Washington, December 6, 1923. SIR: You have been suspended from duty and pay as an auditor at $1,600 per annum, Internal Revenue roll, office of the Commissioner of Internal Revenue, effective at the close of business December 4, 1923, pending investigation of charges preferred against you. By direction of the Secretary. J. E. HARPER, Chief Division of Appointments. The charges mentioned were submitted to Mr. Wedel by letter dated December 8, 1923, over the signatures of George E. Golding and J. R. Cox, special agents, room 239, Treasury Building, and were in substance as follows: You have made numerous trips with Ralph MacCulloch in his privately owned automobile to and from the commissary at Twentieth and B Streets NW., for the purpose of obtaining and disposing of certain supplies unofficially; that you knew that these supplies were being disposed of and the proceeds divided between Ralph MacCulloch, Marving A. Lusby, et al.; that you therefore had knowledge that the Government was being defrauded; and that you took no action to protect the interests of the Government." Mr. Wedel answered the above charges on December 11, 1923, denying the same. Criminal charges filed: MacCulloch and Lusby were indicted on March 31, 1924, in criminal cause No. 42059, Supreme Court of the District of Columbia, and a quantity of supplies in the possession of the defendants, alleged to have been stolen from the Government, were seized by the officials. On January 22, 1925, the United States attorney wrote to Ralph MacCulloch, one of the defendants, as follows: "In the case of United States . Marving A. Lusby and Ralph MacCulloch, criminal No. 42059, in which you are named as one of the defendants, I beg leave to advise you that a nolle prosequi was entered in the same on January 21, 1925, in open court. "PEYTON GORDON, "United States Attorney." On July 22, 1925, the court ordered the alleged stolen supplies restored to the defendants in the above-mentioned case. Thus were the principals in the alleged criminal transaction, of which Mr. Wedel was charged with having knowledge, absolved, and discharged of all liability and culpability. In the meantime Mr. Wedel has been charged with conspiracy, arrested, and released on bond by the United States commissioner, District of Columbia. Wedel absolved of consipracy charge: On April 18, 1924, the United States attorney wrote George H. MacDonald, United States commissioner, District of Columbia, as follows: There is pending before you a charge of conspiracy against one Lincoln Wedel, the hearing having been continued for the purpose of obtaining additional evidence. |