DECISIONS OF COURTS.

POLITICAL ASSESSMENTS.

The evident purpose of Congress in acts regulating in some particulars the conduct of certain officers and employees of the United States has been to promote efficiency and integrity in the discharge of official duties, and to maintain proper discipline in the public service. Clearly such a purpose is within the just scope of legislative power. If contributions for political purposes from those in public employment may be solicited by others in official authority, it is easy to see that what begins as a request may end as a demand, and that a failure to meet the demand may be treated by those having the power of removal as a breach of some supposed duty, growing out of the political relations of the parties. Contributions secured under such circumstances will quite as likely be made to avoid the consequences of the personal displeasure of a superior as to promote the political views of the contributor-to avoid a discharge from the service more than to exercise a political privilege. If it was constitutional to prohibit the removal or discharge of a workingman for his political opinions, the kind or degree of punishment to be inflicted for disregarding the prohibition is clearly within the discretion of Congress, provided it be not cruel or unusual. (Opinion of Chief Justice Waite, United States Supreme Court, October term, 1882, in the matter of Newton Martin Curtis; printed in full in Fourth Report, United States Civil Service Commission, p. 542.)

CONSTITUTIONALITY OF CIVIL-SERVICE ACT.

The twelfth section of the act of January 16, 1883, to regulate the civil service is not unconstitutional because of its prohibiting all persons, whether in the employ of the United States or not, from soliciting contributions for political purposes in any of the places mentioned in that section of the act. (United States v. Newton, supreme court District of Columbia; Washington Law Reporter, vol. 19, p. 770.)

CERTIFICATION FOR APPOINTMENT--REMOVAL.

When a postmaster notifies a secretary of a board of examiners of a selection for appointment from a certification, all rights under the certification are exhausted, and the Postmaster-General, or the postmaster, has no right to make any further appointment without a new requisition and certification.

Congress has left in the heads of Departments all the discretionary power that was vested in them prior to the passage of the civil-service law and the promulgation of the rules relative to removals. (Pulaski v. Lyman, supreme court District of Columbia; vol. 21, Washington Law Reporter, p. 403.)

ent upon the tenure of the office. If the tenure of his office was at the will and pleasure or at the will and discretion of the executive officer under whom he held office, then at any time that executive officer had the right to remove with or without reasons, provided he does not violate the civil-service law, which is the only provision of Congress that curtails or abridges the right of removal.

Although, apparently, it has become a difficult thing to get into the civil service, yet it is just as easy to get out as it was before the enactment of the law. To the extent that the spoils system has been abolished by the civil-service law, it is a great benefit to the civil service. To the extent, however, that Congress failed to 49

H. Doc. 321– -4

provide for the tenure of office of appointees under the civil-service law, it appears to me that the purposes of the act are clearly abortive. Whatever may be my opinion as to the competency of the relator to fill the position that he occupied, or my opinion as to the insufficiency and inadequacy and impropriety and lack of public policy of the reasons that were given for his removal, it is perfectly clear to me that this court is without authority to interfere in this case. (Opinion of Bradley, J., dismissing the petition for a writ of mandamus of Eugene E. Gaddis; Congressional Record, vol. 26, p. 6224.) [The revised rules of May 6, 1896, forbid removals or reductions for political or religious reasons. See Rule II, clauses 3 and 6.]

REGULATION OF THE POWER OF APPOINTMENT.

The subjects of the extent and manner of the exercise of the appointing power and of the duties, relations, number, compensation, protection, and encouragement of those in the public service, to which civil-service rules naturally relate, would seem to be within the scope of legislative authority. (4 Opins. A. G., 165; Debates in Senate, Globe, 1869, p. 17, etc.)

SEPARATION OF EXECUTIVE AND LEGISLATIVE DEPARTMENTS.

By the Constitution, the only direct participation allowed to the legislative department in the matter of appointments is on the part of the Senate alone. It having been held that the power to appoint includes the power to remove, no participation in appointments can be given to the other House of Congress or to any other officer. (Maurice v. The United States, 2 Brockenborough R., 101; 4 Opins. A. G., 164-166; 11 Opins. A. G., 212; 13 Opins. A. G., 516.)

RESTRICTION OF CHOICE IN APPOINTMENT.

The Attorney-General decided August 31, 1871, that both the theory of the Constitution and its recognized interpretation allowed the direct exercise of choice by the appointing power to be limited to a few of the worthier applicants, the less worthy having been first ascertained and eliminated by a just method authorized by law and fairly exercised under its sanctions. The same legal opinion has also been given in England, where the same question arose. (Report of the Civil Service Commission, April 15, 1874; Ex. Doc. No. 221, 43d Cong. 1st sess.)

The power of appointment conferred by the Constitution is a substantial and not merely a nominal function, and the judgment and will of the Constitutional depositary of that power should alone be exercised or have legal operation in filling offices created by law. (Opinion of August 31, 1871; 13 Op., 516.)

The right of Congress to prescribe qualifications for office is limited by the necessity of leaving scope for the judgment and will of the person or body in whom the Constitution vests the power of appointment. (Ibid.)

Congress may, at its pleasure, distribute the appointment of inferior officers between the President, courts of law, and heads of departments, or confide the same exclusively to one or more of these depositaries; but it can not constitutionally vest such appointment elsewhere, directly or indirectly. (Ibid.)

Accordingly, an act requiring the President, the courts, and heads of Departments to appoint to office the persons designated by an examining board as the fittest would be at variance with the Constitution, inasmuch as it would virtually place the power of appointment in that board. (Ibid.)

But though the result of an examination before such a board can not be made legally conclusive upon the appointing power, against its own judgment and will, yet it may be resorted to in order to inform the conscience of that power. (Ibid.) And notwithstanding that the appointing power alone can designate an individual for an office, still, either Congress, by direct legislation, or the President, by authority derived from Congress, can prescribe qualifications and require that the designation shall be out of a class of persons ascertained by proper tests to have those qualifications. (Ibid.)

ORDERS OF THE POSTMASTER-GENERAL.

PRESIDENTIAL WARNING AGAINST THE USE OF OFFICIAL POSITIONS TO CONTROL POLITICAL MOVEMENTS.

POST-OFFICE DEPARTMENT,

Washington, May 23, 1894.

The following Executive instructions are still in force and are republished for the information and guidance of all officers and employees of the postal service.

W. S. BISSELL,

Postmaster-General.

EXECUTIVE MANSION,

Washington, July 14, 1886.

To the Heads of Departments in the Service of the General Government: I deem this a proper time to especially warn all subordinates in the several Departments and all officeholders under the General Government against the use of their official positions in attempts to control political movements in their localities.

Officeholders are the agents of the people, not their masters. Not only is their time and labor due to the Government, but they should scrupulously avoid in their political action, as well as in the discharge of their official duty, offending, by display of obtrusive partisanship, their neighbors who have relations with them as public officials.

They should also constantly remember that their party friends, from whom they have received preferment, have not invested them with the power of arbitrarily managing their political affairs. They have no right as officeholders to dictate the political action of their party associates, or to throttle freedom of action within party lines by methods and practices which pervert every useful and justifiable purpose of party organization.

The influence of Federal officeholders should not be felt in the manipulation of political primary meetings and nominating conventions. The use by these officials of their positions to compass their selection as delegates to political conventions is indecent and unfair; and proper regard for the proprieties and requirements of official place will also prevent their assuming the active conduct of political campaigus. Individual interest and activity in political affairs are by no means condemned. Officeholders are neither disfranchised nor forbidden the exercise of political privileges; but their privileges are not enlarged nor is their duty to party increased to pernicious activity by officeholding.

A just discrimination in this regard between the things a citizen may properly do and the purposes for which a public office should not be used is easy in the light of a correct appreciation of the relation between the people and those intrusted with official place, and a consideration of the necessity, under our form of government, of political action free from official coercion.

You are requested to communicate the substance of these views to those for whose guidance they are intended.

GROVER CLEVELAND.

The foregoing regulation has peculiar application to postmasters, and its spirit should guide their conduct in all official intercourse with the public. They are serv ants of the people in that branch of governmental service which ministers most to

51

their immediate personal convenience and interests and comes in closest contact with all. Enjoyment of its privileges compels persons of both sexes, of all ages, of various conditions, of different nationalities, of every opinion, to visit the post-office with frequency. They transact business generally small in external details but of deep interest or value to them, and, in the aggregate, of vast magnitude and great importance to the country. All, of every degree, condition, and private opinion, are entitled of right to a kindly service by their Government, with attention, civility, and accommodating assistance on the part of its agents, and especially without offense to their sensibilities. The postmaster must therefore be patient, courteous, and helpful in transacting his business, compel his clerks to similar conduct or dismiss them, and so govern himself and them that every proper visitor may leave gratified by good treatment. Advantage of the enforced opportunity should never be taken to subject visitors to the public office either to proselyting attempts to convert them or to other wounds of feeling by expressions in opposition to their opinions— political, religious, or otherwise.

The regulation forbids, further, that the postmaster should install himself as the manipulator of the political affairs of his own party. He is not thereby abridged of his privileges as a citizen, but restrained from encroachment on those of his fellowcitizens. Such a line of conduct as is interdicted would expose him to the imputation of a conscious failure to earn his salary by his service, or of scheming to maintain or advance himself by other means than excellence in performance of duty; tends to excite disaffection even in his own party, and brings reproach on the public service.

No official will find his just independence restrained by the course of manly moderation and tolerant courtesy which the regulation enjoins, nor, if he reads it in the spirit of obedience, have difficulty in determining his conduct accordingly. (Sec. 480, Postal Laws and Regulations.)

ORDER OF THE POSTMASTER-GENERAL FORBIDDING REMOVALS OF CARRIERS EXCEPT FOR CAUSE. [Order No. 235.]

To Postmasters of Free-Delivery Offices:

POST-OFFICE DEPARTMENT,

Washington, D. C., June 28, 1894.

For the purpose of avoiding unjust removals of clerks and carriers in the classified service, and to avoid embarrassment and annoyance to the Department and postmasters with reference thereto, postmasters in free-delivery offices are hereby notified that the following policy prevails in the Post-Office Department, and will be enforced:

All removals and new employments of clerks, and changes in rosters, must be reported to the First Assistant Postmaster-General as soon as made.

No carrier shall be removed except for cause, and upon written charges filed with the Post-Office Department, and of which the carrier shall have full notice, and an opportunity to make defense.

No resignation requested by the postmaster, or by anyone for him, will be accepted by the Department.

W. S. BISSELL,

Postmaster-General.

CIVIL-SERVICE RULES OF MAY 6, 1896,

AMENDED TO JANUARY 15, 1897.

order.

In the exercise of power vested in him by the Constitution, and of Promulgating authority given to him by the seventeen hundred and fifty-third section of the Revised Statutes, and by an act to regulate and improve the civil service of the United States, approved January 16, 1883, the President hereby makes and promulgates the following rules, and revokes all others.

RULE I.

1. The United States Civil Service Commission shall have authority to prescribe regulations in pursuance of, and for the execution of, the provisions of these rules and of the civil-service act.

2. The several terms hereinafter mentioned, wherever used in these rules or the regulations of the Commission, shall be construed as follows:

(a) The term "civil-service act" refers to "An act to regulate and improve the civil service of the United States," approved January 16, 1883.

(b) The term "classified service" refers to all that part of the executive civil service of the United States included within the provisions of the civil-service act and these rules.

(c) The term "grade,” in connection with employees or positions, refers to a group of employees or positions in the classified service arranged upon the basis of duties performed without regard to salaries received.

(d) The term "class," in connection with employees or positions, refers to a group of employees or positions in any grade arranged upon the basis of salaries received, in pursuance of the provisions of section 163 of the Revised Statutes and of section 6 of the civil-service act. (e) The term “excepted position" refers to any position within the provisions of the civil-service act, but excepted from the requirement of competitive examination or registration for appointment thereto.

RULE II.

Commission to prescribe regulations.

Definitions of

terms.

Dismissal for violation of act

1. Any person in the executive civil service of the United States who shall willfully violate any of the provisions of the civil-service or rules. act or of these rules shall be dismissed from office.

2. No person in the executive civil service shall use his official No interference with elecauthority or official influence for the purpose of interfering with an tions. election or controlling the result thereof.

3. No person in the executive civil service shall dismiss, or cause to be No dismissal or dismissed, or make any attempt to procure the dismissal of, or in any for political or rechange of rank manner change the official rank or compensation of any other person ligious opinions. therein because of his political or religious opinions or affiliations.

etc.

4. No question in any examination, or form of application, shall be No disclosures so framed as to elicit information concerning, nor shall any inquiry ligious opinions of political or rebe made concerning, nor any other attempt be made to ascertain, the of applicants, political or religious opinions or affiliations of any applicant, competitor, or eligible; and all disclosures thereof shall be discountenanced. And no discrimination shall be exercised, threatened, or promised, against or in favor of, any applicant, competitor, or eligible, because of his political or religious opinions or affiliations.