The National tribune. [volume] (Washington, D.C.) 1877-1917, 1886-11-18
COMMANDER pUrKE's LETTER.
WASHINGTON. d. @.

I
sion:
COMMANDER BURKE's LETTER.
WASHINGTON. d. @.
| UNITED STATES CIVIL SERVICE COMMISSION.
GENTLEMEN. A careful reading of the Third
Annual Report Of the Civil Service Commits
sion. covering the period from Jan. 16, 1855, to
Jan. is. 1886, has impressed me strongly with
the admirable character in general of the views
Of the Commission. However carefully and
conscientiously subject matter of this kind
may be examined, there is a liability after all
that errors will occur in conclusions through
the multiplicity of points TO be kept in view.
To one or two such errors of conclusion in your
report, as they appear to me, / respectfully beg
leave TO call your attention and to invite your
reconsideration of the points in question. I'm
der the head Of competitive examinations you
conclude that the persons mentioned in Section
l75i, Revised Statutes, 10 be preferred for APP
pointment, are equally subject with all other
classes of applicants to competitive examina-
ton and all the conditions Of the rules relating
thereto as established by the President and the
Civil Service Commission. To this conclusion,
and indeed to the whole argument upon which
il is based, make objection. 1t is true the Civil
Service Act provides n competitive or merit
system, but this is only in general. So far as its
general application is concerned, to applicants
for appointments, no issue can be taken with
your conclusions. But every lawyer will hold
that in the case Of general statute with an
expressed specific exception the exception must
be particularly observed. This is in accordance
with the old maxim that when the law under
/ l. a, "a and
means what it says. See what Section l154
provides. This enactment has in effect divided
the citizens of the United States into two
classes with respect 10 qualifications for APP
poiniment TO civil oiices-Grst, honOrably dis
charged soldiers and sailors; second, all other
citizens in general. The first class is to have
preference. The Civil Service Act by a special
J exception to its general provisions recognizes
the above classification and emphasizes the
provisions for the preference Of the first class.
The provisions mentioned in Section 1914 by
designation set apart from all the other people
Of the United States as a preferred class. There
is no qualification of the terms Of preference
except that the applicant shall be found 10 pos
sess the business capacity necessary for the
proper discharge Of the duties OF such offices.
|
10 business capacity some sort of examination
Of the applicant is necessary. The President
and Civil Service Commission have the right
under the Civil Service law to prescribe the
method Of ascertaining the applicants business
capacity, and they have adopted such a method.
They have said that standard of excellence of
g in a scale of 100 sufficiently proves the nee
essary business capacity of the applicant for an
appointment 1t is sufficient under Section
l75i TO entitle the discharged soldier sailor
T TO his right of preference if he has passed an
I examination showing an excellence equal TO
2 the minimum. The law does not require him
, 20 show any higher degree of excellence or ca
pacity. He is not required under that statute
S to show degree of capacity equal or superior
e 10 that OF any other person. He is not reqGir-
cd 20 put himself in competition with any
other person. If he has shown the business
capacity which the President and the Civil
Service Commission have provided in general
. for all applicants, then he must be preferred for
9 appointment. The statute leaves no room for
= any other qualification requir ement The
Civil Service Act, Section z, provides for a
! Commission for q competitive system OF exami-
nations and gives the President and the Com
mission the authority to make rules under the
g act, etc, but it makes this specific exception
d limiting their powers: :" But nothing herein
y contained shall be construed TO take from those
u honorably discharged from the military or nava
a service any preference conferred by the 175itt
: section Of the Revised Statutes" The Presi
n dents authority (another exception) is Limited
10 a consistency with the Civil Service Act in
Guiding the above exception in favor OF dis
y charged soldiers and sailors With these exeep
. tons in view, it must be held that whateye
powers are given the President aud Civil Sery
e ice Commission by the Civil Service Act, sucl
?. powers are limited by the terms of Section 1854
and must be exercised in strict accordance will
that enactment. The President and Commits
sion must therefore make all rules and regula
~ tons so as 10 be in accordance with Section
- 1854, and not in any manner or degree so as /
e annul or abridge the preference given by il &
At discharged soldiers and sailors. They canno
es do by indircction what they are constraino,
D from doing by direction. The correct conclu
- sion, constituting the two acts together, is tina
m the persons mentioned in Section 1854 canno
ID properly be subjected TO a competitive exami
ID nation, and that whenever any one of them ha
passed an examination of excellence equal Z
az Go in a scale of 100, he has answered the re
ID quirements Of the law, and must be preferre
I'd 10 all persons Of the second class mentioned 70
a appointment. Youhave substantially admitte
- the force Of the position. You have ruled tina
le the age qualification as prescribed in the Ciyi
in Service rules for persons in general cannot b
or required Of the class mentioned in Section l75
nc Whyf Because such a qualification is no
=, mentioned in the law. You cannot apply an
10 one OF the arbitrary requirements of the Civ
n Service rules as TO qualifications Of applicant
lc' Of the first class. If the soldier or sailor men
~ toned in Section l754 has showed his sufficen
r. business capacity, he cannot be abridged of hi
re right 10 preference by any rule OF the Civ
lac Service Commission not strictly consistent wit
~ that section, such as age, relative excelIenc
under competition, or proportionate appoint
ha ments among the States and Territories. Tbes
" qualifications all set aside by the exceptio
s: contained in Section z Of the Civil Service Ac
ed The rule is narrowed do,,n TO the provisions {
~ Section l75i The law ia relation 10 preierenc
m for appointment 10 Office, by necessity of bot
logic and legal implication, must also apply
% certfcations Of eligible candidates by the Civ
Oh Service Commission for the lesser power car
n not be permitted TO control or defeat the create
81 | i look upon IL as unquestionable that tbe n,