The Portland daily press., 1897-05-04
PENSION EXAMINERS.
Commissioner Evans May Hold That They
Are Not Under the Civil Service Rules

BY virtue of the order issued by Presl-
dent Cleveland near the close of his al
ministration 1t has been generally Cup
posed that pension examining surgeons
were under the civil service law, ana
could only be appointed after exa'nina-
ton. But according to despatch 20 tne
Boston Journal, Commissiensr OF
Pension Evans has unearthed declsioh
OF the Supreme court which he oeileves
removes the thousands of examining
pension surgeons throughout the country
from the application of the civil service
law. According to this decision ,xamin-
ing surgeons are not officers OF the Unltea
States, nor department. employs, ana
that they are consequently not dghtfuliy
brought under the protection Of the law,
rs provided by President Cleveland in bis
blanket order Com missioner Evans will
submit his point to the President, and. ii
he be sustained, as he expects to be. there
will follow a general clearing out of the
examining boards appointed ander DEM
ocratic administration. The decision up
on which the claim is made was delivered
by Associate Justice Miller several years
ago; 1t was in q CASE appealed from the
Circuit court by the District of Maine.
DR.. Germaine. an examining surgeon,
had been indicted for alleged extortion in
taking fees from pensioners to which he
was not entitled. DR.. Germaine's counsel
was Thomas B. Reed, and Mr.. Reed
raised the interesting question which
now becomes important in new spplioa-
tion. He insisted that the defendant had
been wrongly indicted as an officer of the
United States, and cited article 2, section
3 of the Constitution, describing how
officers Of the United States be appointed,
in support of his contention. He argued
that Surgeon Germaine. nor having hesn
nominated by the President, with the ad-
pointed by the head OF any department.,
was simply all agent or employe, work
ing for the government under the ap-
pointment OF the commissioner of
pensions, q bureau officials by the terms
of the act Of March g. 1878.
The judges of the Circuit court were
divided on the question, and thus the
case came before the Supreme court,
which decided in favor of Mr.. Reed S
position. Justice Miller, who rendered
the decision, went at length into a dis
cussion of this point, and the portion of
his opinion upon whiuh Commissioner
Evans u0w rests his case reads as follows
elf we look to the nature of the de-
fendant's employment. we think it clear
that he is not an officer. In that case the
term embraces the ideas of tenure, dura-
ton, emolument aud duties, and that
the latter were continuing and perma-
nent, not occasional or temporary. In
the case before us. the dutiss are not con-
tinuing and permanent, and they are &C.
casional and intermittent. The surgeon
is only to act when called on by the COM
missioner of pension in some special case,
as when some pensioner or some claim
ant of pension presents himself for ex-
animation. He may make fifty of these
examinations In year or none. He is
required to keep no place OF business for
the public use. He gives no bond, and
takes no oath unless by some order of the
commissioner Of pensions of which we
are moi advised.
No regular appropriation is made to
pay his compensation, which is 80 for
every certificate Of examination, but Ii is
paid out OF money appropriated for pay
ing pensions in his district under reRula-
tionb to be prescribed by the commission
or. He is but an agent of the commits
pleasure, to procure information needed
to aid III the performance of his own
official duties. He may appoint one or a
dozen persons to do the same thing. The
compensation may amount to IS or $500
per annum. There is no penalty for his
absence from duty or refusal to perform,
except his loss of the fee in the given
case. II Congress had passed law re-
quiring the commissioner to appoint a
man to furnish each agency with fuel at
price per ton fixed by law high enough
to secure the delivery of the coal, he
would have as much claim to be an
officer of the United States as the surgeon
appointed under this statute.
I'VE answer that the defendant is not
an officer Of the United States, and that
Judgment on the demurrer must be
rendered in his favor
1t is possible that Commissioner Evans,
acting on this decision, will proceed to
reorganlze the examining boards and let
the dismissed officials Or the civil service
commissioners bring the question up in
the courts if they think best