The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1871-09-08
THE CIVIL SERVICE.
The Appointing Power OF the Prest-
denI..OpiniOn of the Attorney
General. F.3i ''

| ueulssOpiulou " hS
General. F.4L H
WASHINGTON, September Z,
The following has just been made pub
lie by the Attorney General
DEPARTMENT OF JUSTICE,
WASHINGTON, Aug, 81, 1871.
TO tic President; .
Sm-You have called Tor my opinion
upon certain questions presented by l
body known us the Civil Service Com
mission That commission has been up
pointed under the 9th section OF the ac
of Congress, passed March 8, 1871, max
ing an appropriation for sundry civil ser
vice expenses Of the Government, and fol
other purposes, which Is rs follows
"That the President Of the United States
be and he is hereby authorized TO pre-
scribe such rules and regulations for the
admission OF persons into the civil service
of the United States rs will best promote
the efficiency thereof, and to ascertain
the fitness Of each candidate in respect "a
age, health, character, knowledge and
ability for the branch service, into which
he seeks to enter; and for this purpose
the President is authorized to employ
suitable persons TO conduct said inquiries,
to prescribe their duties, and TO establish
regulations for the conduct Of persons
who may receive appointments in the
civil service"
The commission had under consultation
tho following:
"ReWiUed That we recommend to the
President that all admission to the civil
service OF tho United States, with such
exceptions as may he specified, shall be
determined by competitive examination,
open to all applicants who shall have sat
isfed such preliminary examination In
regard to health, age, character and such
other qualifications, excepting political
and religious opinions, us may be re-
quired."
Objection was made that the designa.
tion OF a single person for appointment by
a board not established by the constltu.
tional appointing power would virtually
vest the appointment in body unknown
to the constitution. My opinion is asked
upon the validity OF this objection. |
suppose that the inquiry relates only TO
those public emplOyments known as
offices, for no one could seriously contend
that there Is constitutional limit to the
discretion Of Congress In prescribing the
terms of admission to such public en-
plOyments as do not come within this
description. suppose, also, that the
phrase "civil service" Is used In distinc'
ton from military and naval service. The
objection Substantially this: Thata rule
Is prescribed by Congress, or the President
in pursuance OF the authority given by
Congress, that n vacant civil office must
be given To the person who Is found to
stand foremost In competitive eXamina'
ton; in effect II makes the Judges In that
examination the appointing power to that
office, and this COntravcncs the cOnstitu'
tional provisions on the subject. The ap.
pointments of civil service officers, with
reference 10 wholntl question should be
considered, are these: The officers, OK.
cept the Speaker, Of the House of Repre-.
sentatives and the President pro tenn Of the
Senate. These, by Article l, Of the Con
stitution, sections 3 and 3, are to be chosen
by tho bodies which they serve. Ambassa-
dors and other public Ministers and Con.
suls and Judges Of the Supreme Court,
who are appointed by the President, after
nomination to tho Senate, and with the
advice and consent of that body, and all
other officers Of the United States, who
may be appointed by the President under
the same conditions, except inferior Off.
GERS, who, when Congress thinks proper,
may be appointed by the President alone,
the courts at law or the heads Of depart.
ments. (Art. II, sec. ~ II Is the opinion
of Chief Justice Marshal that these pro.
visions covered all officers Of the United
States marine. (see Q. g. ? Brocken.
borough.) -ss. Eg c
These provisions must be construed as
excluding oil other modes Of appoint.
ment. The Senate and House of Repre-.
sentatives are to choose their respective
officers. The President with or without
the consent Of the Senate, courts, law
and heads OF departments shall appoint
all other officers These words, Choose
and appoint" rs used in the Constitution
are of the same signifCation in the Con.
stitution and Of the same Specification in
comforting. My attention for the sake Of
brevity Is 10 call the word ask what
does Il mean, ifto apoint Is merely todo
formal act, that Is to authenticate a Sc.
lection, not made by the appointing pow.
or, then there is no constitutional Objec.
tion to the dissemination Of officers by
competitive examination or any other
mode of election which Congress may
prescribe or authorize, but II the appoint.
ment implies the exercise Of Judgement
and will, the officers must he selected nc.
cording to the judgement and will Of the
persons OF body In whom the appointing
power Is vested, by the Constitution and
mode Of selection which gives no room
for the exercise Of that judgement, and
which will is irAdmisible.
The President in appointing Marshal
Of the Senate, In appointing Secretary
Of q Court or head Of a Court, or in ap.
pointing clerk, must take the individual
whom the Civil Service Board adiudge
to have proved himself flttest by c0mpe.
titlve examination, and the will and iudg.
ment which determine that appointment
are not the will and judgment oI the Pres.
ident, Senate, Of Court, or head Of De.
partmeut, but are the will and Judgment
Of the Civil Service Board, and that Board
is virtually the appointing power View.
ing the appointing power conferred In
the Constitution as q substantial and not
nominal function merely, | cannot but
believe that the judgment and will Of the
Constitutional depository Of that power
should be exercised in every appointment.
The power was lodged where it is be-
cause the makers Of the Constitution Alter
careful consideration, thought in no other
repositories Of II could judgment and will
to make proper appointments 80 certainly
be found, and they assigned II to function
aries who were expected to have adequate
knowledge ofmen and affairs; to havea ca
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