New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-09-14
ATTORNEY GENERAL AKERMAN,
Civil Service Act Annulled.

|
| Mr.. Alderman, the United States Attorney
| General. has prepared and published an
elaborate opinion in which he holds that
Congress, by the appointment of an exam
| lining board to determine the fitness of fed
| eral AppOintees to office. deprives Grant of
his constitutional rights and powers. The
sum and substance Of the opinion is that
| tue President is invested with the right by
the supreme law. and Congress can neither
modify. nor restrict, nor destroy the rights
OF the chief executive.
Alderman says an examining board, Or
gained under an act Of Congress. could
| instruct the Presidents conscience. but can
not affect his Judgment or will. The AttOr-
ney General goes on to say: The other
question proposed by the commissioners is
this: May the President, 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
the courts Of law, go as to restrict the ap-
pOintments to class of persons whose
qualifications shall have been determined
by an examination instituted independent
OF the appointing power. My opinion is
that he may have the appointing power and
alone can designate an individual for an
Office. Either Congress, by direct legisla-
ton, or the President. by authority derived
from Congress, can prescribe the qualifica-
tons and require that the designation shall
be made out of class Of persons, ascer
tanned by power Of tests, to have these
qualifications, and it is not necessary that
the judges in these tests should be chosen
by the appointing power.
Attorney General Legare has given an
opinion upon question similar in principle.
Discussing the subject of the appOintm MT
of inspectors of customs by the Secretary
of the Treasury, he considers that it would
be a fair constitutional exercise of the
power of Congress to require that the See
rotary should make an appointment out OF
certain number OF nominees proposed by
collector. Opinions. .l6l.]
The act under which the present civil
service commission has been organized
gives the President authority to prescribe
such rules and regulations tor the admis-
sion of persons into the civil service of the
United States as will best promote the eff
nciency thereof, and his very ample a,,-
thority will certainly embrace the right to
require that persons admitted to the SER
vice shall have been found qualified by
competent examiners.
1t has been argued that q right in Con
gress of selection implies a right to the
designation of a particular individual, but
| do not think this is fair conclusion.
Congress could require that all officers shall
be OF American citizenship, of certain
age: that judges should be Of the legal pro-
fessiOn: and still leave room to tie appoint
ing power for an exercise of its own judg-
meht and will; and l am not prepared to
affirm that to go further and require that a
selection shall be made from persons found,
by an examining board to be qualified in
such particulars as diligence, scholarship.
integrity, good manners and attachment to
the government would impose an unconsti-
tutional limitation in the appointing power.
1t would still have reasonable scope for
its own judgment and will.
But it may be asked at what point may
the contracting process stop! Iconfess my
inability to answer, but the difficulty of
drawing a line between such limitations as
this and such as are not allowed by the con-
stitutiOn is now proof that both classes do
not exist. In constitutional and legal IL
quiries, right or wrong is often a question
of degree; yet 1t is impossible to tell pre-
cisely where the scale of right ceases acI
wrong begins. The questions Of excessive
bail, cruel punishment, heavy damages and
reasonable doubts are familiar instances
in the matter now in question, it is not
supposable that Congress or the President
would require Of candidates for Office quail
fcatiOns unattainable by sufficient mum
Der to afford ample room for choice.
Very respectfully your obedient servant,
A. T. AKERMAN.
Attorney General.