Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1871-09-08


office department has ordered an extension Of
the mail service on the Great Falls and Conway
railroad from Union to Osspee, seventeen miles
and half
OPINION CONCERNING THE CIVIL SERVICE
COMMISSION.
Attorney General Alderman, in accordance
with the request of the president, has rendered
an official opinion upon certain questions in
volving the powers and duties of the civil SER
vice commission established by act of the last
congress. After reciting the provisions Of the
law under which the commission was appointed
Mr.. Alderman discusses the objection which has
been raised that the designation of single per-
son Tor appointment to any office by the board
of examination, which is not established by the
constitutional appointing power, would viz
tually vest the Appointment in body unknown
to the constitution. The objection is subStan-
TALLY this: That Il rule-whether prescribed by
congress, or the president in Pursuance Of au-
thority given by congressional a vacant
civil office must be given to a person found to
stand foremost in competitive examination, in
effect makes the judges in that examination the
appointing power to that office, and thus con-
trayenes the constitutional provision on the sub
ject Of appointments.
Having enumerated the civil service officers
with refer ence to whom the question should be
considered, namely: Officers of congress, eX-
cept the speaker of the house and the president
pro tenn of the senate, ambassadors, public
ministers, consuls, judges of the supreme court,
and all other officers appointed by the president
and confirmed by the senate Mr.. Alderman
proceeds with long discussion of the true pur-
port and Specification of the words "chooSe and
appoint" in the constitution, reaching the con-
cuSlon that they require the exercise Of both
judgment and will on the part of the appoint
ing power, whether the president, the senate or
the head of department, and that merely
authenticating or confirming Il selection not
made by the appointing power fails to meet the
requirements of the constitution.
Should the will and judgment of the civil SER
vice board be taken, that body becomes virtually
the appointing power. The makers OF the con-
stitution lodged the power where they did for
the sake of securing the direct responsibility
and personal efficiency in the administration of
public affairs, and the reasons for the constitu-
tiOnal provisions all forbid any Judgment
and will but those of the constitutional appoint
ing power. 1t should have legal operation in
the matter of appointment. If congress.c can COM
pei the president to nominate Il person selected
by others, it can compel the senate to advise and
consent to such nomination. If the foremost
man in competitive test is entitled to office, that
test must be conclusive upon all whose action is
required to place him in office, and, in fact, the
action of all of them is merely formal except
that of the judges in the test.
Mr.. Akerman says, however, that the ap-
pointiT power may avail itself of the Judgment
of Others as means of information respecting
the candidates for office, and has habitually
done so from the foundation of the government;
and secs no constitutional objection to an exam
lining board rendering no imperative judgment,
but only aiding the appointing power with in
formation. He admits that the right of con-
gresS TO create offices implies the right to pre-
scribe the qualifications for them, but insists
that the right is limited by the necessity of eav
ing scope for the Judgment and will of the APP
pointing person, or the body in whom the con-
stitution vests the appointing power.
The legislation OF the country from an early
period, it was supposed, authorized different
view from that here expressed, but Mr.. Aker-
man argues that, upon this legislation, il may be
observed in some cases,-aS of deputy marshalS
and clerks-the persons appointed are only the
representative of their principals, who are held
responsible for their conduct; that in others, the
persons appointed were not originally consid-
cred officers in the constitutional sense of the
term, congress having certainly no power to
vest appointments, directly or indirectly, else
where than in the president, courts of law, or
heads of departments.
Mr.. Akerman comedies that there are a
number of apparent violations of this principle
as thus defined, as in the appointment Of GUS
toms officers, as SStant assessors and military
and naval cadets, but says the present question,
in its essence, is, whether the appointing power
belongs to congress or to those named in the
constitution as depoSitaries of that power; for
if congress can Ordain that an office shall be
filled by person whom the examiners pro-
nouncc the fittest, it can ordain that the office
Shall be filled by person whom congress judges
fittest, and may directly appoint its favorites.
The constitutional aspect of the matter is not
changed by the suggestion that congress might
prescribe precepts on which examiners should
Judge, for it might prescribe the principles on
which itself should judge, and vary and apply
them at pleasure. Mr.. Alderman concludes this
branch of the discussion with these words: Gin
short, the test of competitive examination may
hn tn Ortar m info tba ,ao
ofthe appointing power, but it cannot be made
legally conclusive upon that power against its
own judgment and will"
To the other question, whether the president
under the act by which the civil service COM
mission is organized, may regulate the exercise
of the appointing power now vested in the
heads of departments or courts of law, so as to
restrict appointments to Il class of persons
whose qualifications or fitness shall have been
determined by an eXaminatiOn-inStituted in
dependenty of the appointing power-the
attorney general gives an affirmative answer;
he says, though only the appointing power can
designate individuals for office, either the presi-
dent or congress may prescribe qualifications
and the required designation shall be made out
of the class of persons ascertained by the proper
tests to have those qualifications, and it is not
necessary that the judges in the tests should be
chosen by the appointing power.
How far congress has right to limit the
field of election, Mr. Alderman conlesSes his in.
ability to decide. Congress could require that
officers shall be American citizens, of a certain
age, that judges should be Of the legal profession
and he says be is not prepared to affirm that to
go farther and require that the selection be
made from persons found by an examining
board qualified IN such particulars as diligence
scholarship integrity, good manners and at.
tachment to the government, would impose an
unconstitutional limitation on the appointing
power. 1t would still have a reasonably scope
for its own judgment and will. 1t is impossible
TO say where the legal limit of qualifications
should be drawn, but it is not supposable that
congress or the president would require of the
candidates for office qualifications unattaiuable
by sufficient number to afford ample room
for choice,