The New York herald., 1871-09-08

pSufen r -.- - A.
hu.h, 4 Attorney General Aksrman ON 'n'
:, /rssy Of Board Of Examinersto fre-
/Iribs Appointments Authority De-
ni.d-the Appointing Power Defined in
n Constitution Right ofths Presi-
dent and Compress to Require
Qualifications of Candidates
WASHINGTON, Sept =, 1871.
rNe following has just been made public BY the
SAAsorney Generai:-
DEPARTMENT OF JUSTICE, |
WAsHINGioN, August II, 1911.
prR-You have called for nv opinion upon certain
0nestlons presented oy the body known N tho
Clvii SeIvlcc Commission. That Commission has
appointed under the ninth sesi)n or the act OF
CONGRESS, passed March 3, 1874. maSing appr1prt
aiiOns for sundry expenses OF The government
Tor The year ending June 60 49, ahd FOR other pur.
poses, which Is as Ionows
That President ~ the United States be and be %
ssreey authorized 70 prcso be such ra ass ana @
Gsnss s VIII n , r, & , the s sern sv se saS
ascertain tue illness Of each esadae y respsGt 10 s
into which he enter: and for this purpose
sonane cd nars. rs 10 essoe ,htr
srplnme,,s IN The er .srs,ee -l6 statutes,
Tie committee had under considera ion the fol-
lowing Resolution -
Rcsolvei That w. recommend TO the President that al
exceptions be speclsa .aal be detsr nned oy com
stisaed such preirainars examna rgsrd healih
character and such other qua excepting
rne Oh ectlon was made that the dcs gnation OF
single person Ter appointment by a hoard not estab-
hsned by the constitutional appointing power would
virtually vest the appointment IN body unknown
10 the constitution. NV opinion ~ asked upon the
quiry rela,es ouiy 70 those pubic employ msnts
known as 'onlces Tor no one could seri-
Dns .Ss Ga'eha @ 10 '"as sns asreon Congress Congress
IN prescribing the terms OF admission 70
such pnelc cniplovments as do not come within
TINS description. SUPPOSE. also. thas Tie phrase
'viv service" Is used IN distinction from the n,ll-
tery and naval service. The oh eclion Is si6staIi-
gress, the President IN pursuance OF authority
gwen py Congress, mat vacant eiyii onlce must
mos; IN com petfive examna,ion IN enccr makes
the Judges In .nat exaulins'lon , the appoinsmg
tEe constitutional provisions on the SUBJECT OF ap-
rontmen,s me civ service Officers nith re,er,
epce 10 wnom this question should DC consiGered I
arc tnese:-Tne onicers except The speaker. Of the
House OF Representatives. aud tne preslen, pro ien.
p! the Senate-thcse, 10y article scctions ana : OF
are 20 ns Ssoasn ny e bodies
iers and consuls aud Judges OF the suprcmc Court,
who are appointed 6y the President after
Sgce ana counsel % hoay ana a al Other ONE ne
scrs Of The United States who are 10 be appointed
BY the President under me same conditions, except
Inferior officers VINO, when Congress thinks proper,
may be appointed 10y The President alone. the courts
pflaw or the heads OF departments tAriice H. Sec
1t was the oplnoin OF Chief Justice Marshal that
these provisions covered AL the officers OF the United
sass easrusd efR @ @exens aTY''oSal a oel
House OF RepresenIauyes are to choose their
respective Officers. The President, with OF without
ne consent OF the Senate, the courts OF law and
the heats OF dcpariments shall appoint all the
ssaer officers Tiiese.words 'choosc and appoint y
rs used In the constitution Of The same sIsnin-
0Fsyy 'nf latte ,Sa. TS5S ask .TsS S1S
% 90 a formal act--thas is. TO aathen, h
tlcaie selection not made by the appoint.
objection to the designation Of oncers hy a coa.
pcttve examination or any other mode o' election
lne appointment impiles an exercise OF Judgment
hnd viii The ollcer must be sciecied according 10
body '' IN whom m the '' oproininy power power Is is
vested by the constitution, and mode OF
s'fSaqp sSaf JudSment Ghn and viii is iaadnisse II tho
Preslden III appointing marshal If Ihe senate In
psrtment 10 appointing CLERK must take the lndi.
ttiual whom a civil service board adiudge TO have
1--we examia ion, tBen the Will and Judgment
which determine that appointment are not the will
hnd Jud ment The President, Oi the Scatc OF the
court or Of The head OF department, but are The
VIII and Judement OF The c,y service board,
and that board Il virtually the appointing
power. Viewing the appointing rover conferred
in the constitution as substantial and not merely
nominal Junction, | cannot but be.leve that the
tudgment and Will OF the constitutional deposi,afy
OF that power shouid be exercised every ap
poniment. The power was logged wBerc 1t is be-
the makers oi the constitution, after careful
ronsideraiion thought lhat IN 10 other deposnares
Of n Could the Judgment anu the Will
10 make proper appointments SO certainly be
found. and they assigned 10 the iunctionariss who
men ana affairs 10 have capacity for pubic bust
uess and to ee responsible 10 conscience and 10 the
placed The power IN the hapds OF those who would
have par. .cular interest in using 1t well. IL
DO tIeIr WORK with ease or advantage; ,hereiure
each branch OF songress cDooses Ia officers With
yut Ell cicnt scryitors a court OF law Is unootel,:
t0frel0le Congress- aDtAiutmHula
courts.
sf capaee trus,y assistants therefore Congress
may vest appointments IN the heads OF departments.
Is with ,he freaienl whose success, In his weighly
charge essentially depends on Lac competency or
iional provision All forbid ina, any judgment aud
wlll ru1 Those OF the constitutional appointing
sr snoa nss Legal ostoa m te
eivll appointments are made by the Pres-
asnt. win = the advice and consent Of the
nominate person selected by others II can compel
the Senate 10 a'ivlse ana consenr to That nom ma
ton. A. the foremost iliau III the compcutve test
entitled 10 the Office, that tcst must be conc.usge
npon an whose acuod Is required 10 place HIM IN
an The ,est But ADVICE and consent Imply
does noinlnaton; so dues appointment. There
% this dlfer,ncc-that The judpInen, and W II OF the
Senate can regard only the person proposed by the
President, while thcre Is no amllar coDst tutional
nmita,ion upol ans judgment and will But there
N no right IN Congress 10 cons.rain either 10 adopt
the Judgment aud the VIII oi Others. such con-
etraint illustrates the constitutional design that the
Judgment o tue Senate shall revise The Judgrn OF
Abs Presldent and tnat the judgment q! both srsll
concur Ia hlliug he Onlce.
Although Al might not b. thought expedIcnt 10 Apply
tbe competitive Test II established TO appointments
tn which the Senate must concur, a. siouiu tie re.
neinDeied mat tner. II as much Constitutional right
60 40 ln the oi appointments OF the olner
class When the appoint 1eni ui an Inferior officer
- !, vested n Tue President doue MS Individual act
accom- pl 'sliCs what Is dCIc by lInscll and tho
3 kegaie together IN The appuniInen, o, a superior
onirtr, aud should De as maependenily performed
. eacn larl o tue COMPOUND process Ia The Iai,er
ss casc. The AZ .oirling power mag avail
siisc,f of tie lucg tnl 0f others as one means of
:aniorinai9D for wsni o personal knowledge oi can.