The morning call., 1893-07-20
MAKE AN APPEAL.
Inspectors Say Wise Has
Violated the Law.
HE IS RULED BY POLITICS.
The Collector Must Explain Why
Efficient Employees Have Been
Removed Without Cause.

service test cases of S. Z. Beban and F. J.
Halpin were forwarded TO Washington
Yesterday by their attorney, S. E. Phillips.
1t is the first case arising under the civil
service law wherein the question to be de-
cIded is whether or not civil service ap-
pointee can be removed at the end of his
probationary period without good cause.
Six days after assuming his Office Col
lector Wise removed all Of the Republican
probationers Serving in the Custom-house
aud appointed Democrats in their places.
This action, it is Claimed, was in violation
OF law, and forms the basis upon which the
complaint in the present case Is made.
The facts in connection with the removal
of Messrs. Beban and Halpin have been
fully presented. and if the President ana
Civil Service Commi issioners decide ad-
versely the case will be carried 10 the
United States Supreme Court.
The appellants aliege that they success
fully passed a civil service examination
and thereafter were placed upon the
eligible list for certitcation and appoint
menU and that on December 6. 1892, they
were certified to eX-CollectOr Phelps by
the Civil Service Commission as worthy OF
appointment and were appointed inspec-
tors for the required probationary period.
On June /, 1898. Mr. Wise was inducted
into office as Collector and on June u he
removed the petitioners ana otnerS'Who
had been appointed as probatOners, by
notice through the Deputy Surveyor that
theit conduct and capacity were not salts
factory TO him as app0n ting officer. In
their IlaceS Democrats were appointed.
On June 5 Inspectors Beban and Halpln
secured from the Surveyor. who is the
official head of their department. testi-
"a
satisfactory conduct and capacity neces-
eary to their absolute appointment and
res ioratioa TO Office, which Wise Gncondi-
tiOnaily refused.
1t is contended that Collector Wise has
violated the civil service law; has abro-
gated the rules PROMULGATED hereunder;
has denied the capacity and efficiency of
tired AMI capable public servants; has ex-
erciSed powers of appointment and re-
mOVal not conferred by statute and con-
trarY to justice and equity; has attempted
To reward supposed partisan zeal under the
preteXt Of restoration To Office; has made
political opinion and affiliatlon superior to
merit and has prescribed a mode TO Sc
cure reinstatement to office not contem-
plated by the rules of the Civil Service
Commission.
The petitioners also contend that Col
lector Wise is ameEable to rule % OF the
civil service act, which prescribeS the penal
ty of removal for any executive officer who
violates any OF the rules. They ask that
he shall DE required to absolutely appoint
them and pay themithe salary fixed by law
from the date of their notification of re-
moval, and In the event that he fails 10 do
81 that he snail be removed and his sue
cessor appointed with instructions TO carry
the law into effect.
In support of the petitioners claims for
absolute appointment and reinstatement
they have presented numerous points of
law and the aftidavits OF those dismissed
by Collector Wise. They claim that the
Collector has adopted an Interpretation of
the iah~ that destroys the { Tfcacy of rule
OF thew civil service act, nullifies the intent
of Cor,gress, and, if sustained. practically
amountSIO u repeal Of the existing law of
the case.
Departmental rule Z section 5, provides:
When person designated for appointment
shall have reported in person TO the appointing
officer he shall be appointed for prObational
period of SIX months, al the END OF which pc
Rod, If his conduct and capacity be satisfactory
10 the appointing officer, he shall receive abso-
lute appointment; but II his coDduct and
capacity De not satisfactory to said officer lie
shall be Notified hat he will not receive abso-
lute appointment, and this notification shall
discharge him from the service. The appoint
ing officers shall require he heads of bureaus
or divisions under when probationers are serv
Ing 10 keep record ana 10 make report Of the
punctuallv, industry habits ability and apti-
tude of each probaioner.
If this rule were less explicit in terms,
less mandatory upon the appointing officer,
less impregnated with the spirit OF equity,
as well al the wise policy OF the civil SER
vice act, ii might perhaps be technically
urged that Collector Wise had merely
taken advantage of a break in the law
had utilized gaping hiatus in the s;atu-
tory fence consisting of the interim be-
tween the end of the probational period
and the beginning of the permanent
period, TO ride rough shod over the civil
service act in order 10 compass the resiora-
tion TO Office of persons of his political
faith.
But the rule is positive as to conduct
and capacity" and equally positive that if
these be satisfactory the probatoner
shall be absolutely appOip ted" 1t de-
fines conduct and capacity to consist of
punctuality. industry, habits, ability and
aptitude; not political faith. not obstruct-
ing the appointment of more faHCred in
dividuaIs or other conditions.
In the present cases, contend the ap-
plicants, the conduct and capacity of the
probati0ners Beban and HaIpln were en-
trely satisfactory to the appointing officer,
Collector Wise, and the communcat ton to
them dated June 6. signed by the Deputy
Surveyor, Il have this day been notified by
the Collector that your probationary
period having expired and not being sat
isfactory to him as nomtn ating officer, you
are out of the service is in bad faith. in
violation of the rule and strictly construed
is, per Sc. an invalid notification, since il
does not contain the test words Of depart
ment rule Z, section 5. and assign the lack
OF capacity as reason for refusing to ap-
point absolutely.
But if the notice had in terms complied
with the obvious requirement of the rule
and had stated that the probatiOners' con-
duet and capacity were not satisfactory to
the Collector, this statement would now
be admitted by the Collector to be false,
because the Collector made no effort
whatever to ascertain whether their con-
duct and capacity were or were not salts
factory, deemng it unnecessary. H. was
the probatiener himself and not the pro-
batiuner's efficiency that stood in the way;
and Eence conduct and capacity were not
mentioned In the notice of dismissal.
Ex-Collector Phelps was charged with
removing Democrats in violation OF the
law. He, however, has always claimed
that the removals were made because the
men were incom petent and forwarded that
reason to the Treasury Department at
Washington. But If the original removals
by Phelps were Illegal, those by Collecl or
Wise were more palpably unlawful be-
cause they lack even the pretense of inef-
hciency or misconduct as a prima-facie
cause.
a consensus of the official acts of Col