The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1871-09-08


thority, l should not take this power
to embrace the subject Of appoint
ments, and | only refer to 1t fol
the purpose of showing that the claim
made for Congress in relation to the
military and naval appointments, has
been put in on the ground Of not being
applicable to civil appointments, ltmore
concerns us to ascertain what is Constitu.
tlonal rule than to learn whether that rule
has always been observed. Nineteen
violations OF the Constitution do not
Justify q twentieth. The present ques.
ton, in its essence, Is whether the ap-
pointing power belongs TO Congress, or
those named in the Constitution as de-
positories oi that power. For, II Congress
can ordain that an office shall be filled by
a person whom examiners pronounce the
be fittest, It can ordAin that an office shall
filled by a person whom Congress judges
the fittest, and may directly appoint It's IN.
vorite, The constitutional aspect is
not changed by the suggestion that
Congress might prescribe precGpts on
which examiners should Judge and might
vary and apply them at pleasure. Oh.
jeCliOns would not be removed by inter
posing the formal action of constitutional
appointing power, Oh enactment that the
President shall appoint to Ger.
tain office, aperson adjudged by the ex.
amlners to be fttest, ia not different in
constitutional principle from an enact.
ment that he shall appoint Jno. Doc to
that office. In neither case are his judg-
ment and viii called Into exercise,
The appointment Is effected in one case
by the Judgment and will Of the Oxami-
ners, under authority from Congress and
the other case by the judgment and will
OF Congress in cases particularly pro.
pounded by the Commissioners Il the
President Is authorized by All act
of Congress AppointeCes of the
Courts and head Of departments should
always appoint persons named by the
Civil Service Board, that board would
virtually be the appointing power and
that act of Congress be the foundation of
It's authority. That Congress cannot give
that authority | think Is manifest, 1t has
been suggestedthat thcappointmcntS now
vested In the courts and heads oil depart.
ments could be transferred by Congress to
tho President and that he could appoint
according TO the result Of competitive
test, testified by an examining board, To
this mode of selection, If discretionary
with the President, there Is no Constitu.
tional objection, and the same mode, TN.
der similar conditions, could be used by
the various appointing powers under the
present laws, II being always understood
that the appointing power resorts to the
test as way OF finding out the ilttest
person for the vacant office, and Is not
bound to abide by 1t II satisfied that the
appointment Of another would best
serve the public interests. In short,
the test Of competitive examination
may be resortcd TO In order to inform
the conscience Of the appointing power,
but cannot DO made legally conclusive
upon that power against It's own ludg-
ment and will. ...t....
The other question proposed by the
Commissioners Is this: May the Presi-
dent, under the act by which this board
Is organized, regulate the exercise Of the
appointing power now vested in the
heads OF Departments or in courts Of law,
so as to restrict the appointments to n
class OF persons whose qualifications or
fitness shall have been determined by nm
examination instituted independent Of
the appointing powcrS My opinion Is, he
may; though the appointing power alone
can designate AN individual for office,
either Congress by direct legislation, or
the President by authority derived from
Congress, can prescribe the qualifications
and require that designation be made
out for that class Of persons ascertained
by proper tests TO have those qualiilca'
tions; and 1t Is not necessary that Judges
In tests should be chosen by tire appoint
Ing power Attorney General Legare
has given an opinion upon this
question similar In principle, discussing
subject of the appointment OF the inspec.
tors Of customs by the treasury. lie con-
siders that II would be fair constitution.
al exercise of the power Of Congress TO
require that tho Secretary should make
IN appointment out Of q certain number
Of nominees proposed by the collector
from opinion 1G4O act under which the
present civil service Commission has
been organized, giving the President au.
thority 10 prescribe such rules and regu.
latlons for the admission Of persons into
the civil service Of the United States, as
will best promote the efficiency thereof,
and thus very ample authority will cer-
tainly embrace the right and require per.
SONS admitted into tho service who shall
have been found qualified by competent
examiners. II has been argued that the
right in aOngress TO limit In the least
tho righe 10 carry on contracting |
progress to the designation of par
ticular individuals, but | don't think this
fair conclusion. Congress could require
officers 10 be Of American citizenship and
OF certain age; that judges should be Of
the legal profession, and still leave room |
for the appointing power 10 exercise It's
own Judgment, and will. am not pre-.
pared to affirm that to go further, and re.
u1Ire q selection 10 be made from persons |
found by the examining board TO be
qualified in such particulars as diligence,
scholarship, integrity, good manners and
attachment TO the government would I'm.
pose an unconstitutional limitation on the |
appointing power. II would still have a |
reasonable SCOPE for It's own judgment,
anil will. But 1t may be asked at what
point may a contracting process stop 7
| confess my inability to answer, but
the difficulty of drawing line between
such limitations as are and such as are
not allowed by the Constitution, Is no
proof that both classes do not exist in con.
stilutional and legal inquiries Right or
wrong is often a question Of degree, yet 1t
Is impossible to tell precisely where in
the scale right ceases and wrong begins.
Questions Of excessive bail, civil punish.
inents, excessive damages and reasonable
doubts, are familiar instances in the mat
ter now in question, and II is not supposa.
bic that Congress or the President would |
require of the candidates for office, quail |