The New York herald., 1871-09-08

Ss ~ WAS ronsldered hy congress that the olce
wss subs,anttaIy IN the priuclpal; second sa,s
wos no snubt co sdercd bv Congress tina. some o.
the persons wnose appointments were thns pro,
videi Tor were NO. oiiieers IN the constitutional
Sn,vcrsslly Sela 70 0e osdces were not esteemed
such tse OUTSET; but win the grown Of tue gov.
oil le,.isiatve rreceien's is somewhat weaKene1.
ics II cannot he de aieu that ssme On them take or
granted mat C0aIfSSS IS Absolute IN Inc mater W
appointment ouch. however Is not the cons,itn,
tiunal .ule. COngrcss mas power 70 ds riote. ~ ns
pleasure, the appointment OF inierlor oheeIs ~
tween the ileslienI courts OF aw aad heads OF do.
pairneats, or TO vest such appointments excnssVe,y
in one or two OF ta0se posi,ores DnS re,y S T "r
power 10 vcsi appointments eiscwnere directly VI
indirectly. Attorney General Lesare says
Congress power whaese o. vest s ppo%n%s%ens % ~ n.
fsra ss public .sASry
M M the fie.i,sn, .ns hlsis ,s4
He also was Of opinion that where cnstoms
O1lcer appointabc by the Collector. WIN TIC W,
nroba'loa o. the secresaffy ,n. "e eppoiasmeHs
or else the appointmsut IS nii,l s. ams Ias 'v% Sa
under the cns,toS., lon, na c,sIs aes, aDno,n,eS UT
By the Assistant treasurer WIZ. the approoation oI
he secretary OF ne rcasury, was appo'nsea oy .nS
constitutional DrOvlsfoJ on Tue ssO ect ot appoht-
ing power. (Unncd states ys. uarweii; wallace,
provision IN the Internal Revenue act OF Marcn 3.
1862 aivin. assessors he appointment Of assistant
slituIionai al opns., 2l, AMI such appears
TO have oeea tue opinions OF Congress Itself when
January l5 1866, repealed mat provision and gave
the appointment OF assistant assessors 10 tne Secrc'
T nave o !ne @e scasssd III the ses re pro-
motions in the army and navy ara the appolnlnlcns
OF cadets. some OF the nrovsions OF tnese STATUES
aud the defence oil Inem mas oeen less re
qncntly rested ON tan clauses ,,n,o1. IN Inc con,
than ON the power Of Congress to make ru es Tor tnc
government and regulation or the land and naval
forces. lSee report Oh the Senae Commltee on
Military Aliairs April 25 1922, Nies Register, vol.
o. p. iIs Debate ON the Civil Service In Inc House
of Representatives, MAY is, lsl0.]
Unless controlled by autnority should not take
this power to embrace the snbjcct OF appointments
sna a Uny ss made "a for s IN
military and naval appointments has been put on
ground not applicable to civ appointments, ~
tiona han 10 learn whether that rule has aiwaya
been observed Nne.een violations Of the constitution
J do not justify twentieth. Tile present ques ton
| In It's essence Is whether the appointing power be.
longs TO Congress or 10 M sc named Ia the c0nsit.
ton as the dcpostarieS of that powers Jor congress
can urdaIn that an ONCE shsl be filled by the per-
son whom the examiners pronounee the htiest ~
son whom Congress judges the f,test, siia may
directly appoint ITS favorlte. The constitutional as
lion that Congress might prcscrioe the pTeceDts
on winch The examiners should judges for It inign!
prescribe the principles on which Itself 6houd
Judge ami might vary and apply them at pleasure.
The objections would MT be removed pv interposin0
the formal action OF The constitutional appointing
power An enactment ihat the President SHAH ap-
point to certan ONCE me person adjuuged Oy the
examiners to be tie uttest is not different, IN
constitutional principle, rom an enactment that
he snail appoint Jonn Doe to tnas ONCE. IN
neither case are his Judgment and Will called into
exercise. The appointment ls enected in one case
by The Judgment and VIII OF the examiners under
authority from Congress, and n the otner case by
the Judgment and Will OF Congress-.
In the cases particularly prOpoundcd by the Com
missioner II the PRESIDENT authorized by an act O.
Congress, should prescribe that the courts and
heads OF departments should always appoint the
persons named by . clv!i service board mat
board would virtually be TIE appointing power,
foundation OF lfs authority. That Congress cannot
give that authority think, Is manifest a.s u mas
III the COurCs and III the heads Of Departments could
be transferred py Congress TO the President. aud
that he Could appoint according To the result or
hoard. 10 this mode Of selection. II dlscrs:
| under q similar condition, could be used by
aw Ses @ hat
appointing power resorts to this test as way or
and Is not bound ABIDE Dy 1t II satisfied that the
appoint ment OF another would best serve the pubic
animation nay be resorted 10 IN order to in.
turin Inc consc'ence OF the appointing power
/ power against its own judgment an1 WILL
The other guesuon proposed by the commission.
which this Board is organized. regulate the exercise
OF the appointing power now vested IN the heads OF
whose qualifications or ntncs, shall have
independent OF the appointing power My opinion is
tlat he NAV: an. though the appointing power
Congress, by direct legislation Or the President by
authority derived from Congress, can prescribe the
qualifications and require hat me designation snaii
be made ont OF q class Of persons ascertalned by
proper tests 10 nave those qualifications and II Is not
necessary tnat the judges in the tests should
be chosen oy the appointing power. Attorney Gen.
er.l LegaIe has glycn an opinion upon question
similar IN principle. Discussing The subject OF The
appointment OF inspectors OF customs by the Trea-
sury, considers that It would be far constitu-
!ional exercise oi the power OF Congress
an an apponrnent t' Out Of Certain Number Of
nominees PROPOSED BY. oy ,cS,n collector; q opn,
civil service Commission has been OrGaGized gives
the President authority 10 prescribe such rules and
regulations for the admission o. persons into the
civil Service Of the United State will best pro-
mote the efficiency thereof. and this very ample
authority viii certainly embrace the right TO require
been found qualified hy competent examiners
II has been arancd That . right in Congress 70
right 20 carry on tn, contracting process 10 the
desgnation Of q particular mdividuai but do not
qnre that officers slal be OF American citizenship
! OF q certain age; that judges should he
room tue to sao spponsns " powers s'' for 'edSe aSe
| exercise OF its own Judgment aud VIII, and ] am
aure ts the seecson tat shall be nade from per
sons found by an examining board to bc qualified ia
such particulars Is diligence scholarship Integrity
good manners and attachment to government, would
impose an unconstitutional limitation on the appoint.
ing power. 1t would still have reasonable
scope Tor ITS own jud dgmeni and WILL But IL may
asked at what point may the contracting process
! siopg confess my tnaoility to answer. But ine
difficulty Of drawing line between such Limitations
as are aud such are not allowed by the constitu.
ton Is proof tnat both CLASSICS do not
exist In constitutional aud LEGAL Inquiries
Iignt or wrong Is often q question OF de-.
gree. vet It Impossible to tell precisely where
ia The scale right ceases aud wrong begins.
Quesons OF excessive bail, cruel punlshIients ex-
cessvc damages aud reasonable douDs are Ialnar
iIs asccs. In the matter bOw 10 Qu,'ston IT. Is not
Gatala lQl UE.Ss "a all WnIld
reanire or candidates. Tor office qualifications ,i-
aitainab.e by a sufficient numoer 10 alord ample
room for choice. Very respectfully, your ODedient
servant A. 7. AkERMAN, Attorney General