The daily morning Astorian. [volume] (Astoria, Oregon) 1883-1899, 1898-01-28
WHO IS TO DECIDE
THE QUESTION?
Test Of the Civil Service Law BY az
Old Soldier.
RULING or COURT OF CLAIMS.
head si Dspsnmsst Nay Hsnoys. but Ap-
Isistsssts HAST Be Asds usdsf
Civil Service Laws

Tnc court of claims ihir morning rem
dtrcd an important decision bearing on
tho power Of executive oifccrs 10 dismiss
tnelr cl,fko. TOE case VIII - g. iAe
United states supreme court.
1he case .a ,nnt Of Morris Kelm, an OLD
roiIl,f. and was D,gun over tao years
ago. SIR kelm waA hUnOray.y Discharged
itOm toe army in iso o. reason VI dis
ability" May Z. is's. m,cf rxAmioau9"
uy tho eiyil service commission be was Sp'
pu.n.tI to ll,fksHip ~ inc p3A0Ilice
department.. ng wAs Transferred several
times aaJ. Oh AiArca !. lsi Wa a ciefk
in rle pension 0nieg. hs salary ~as re-
au.su ta.D IRON N-y 80 N,pyg. Juiy y.
lsji. ,au WAs I.sgnars,d ava mas not Deeh
able 20 ru.urs rpiuS talcmcnt hia dis
charge faas recommended Dy Pension
COMMISSIONS LJchgea Oh yhu ground o.
inriiiy .cncy,
Lutnvr R. Smith snd John G.. Chancy VI
the I.stsgt bai n,c1 a petition ia the court
of claims tWo y,afa ago tor accrued sal
afy ior Att kum, ana seeking Oy the
petition " seJIT, MS reinstatement. lne
petition set forta tnat under pnc Law giY-
!ng preference 10 soldisna and Hailora AT
hom mai pc,a wronSmly dlscnargvd'
and Drough, up the question OF uae right
Of a head oi department 30 make re-
moyaA.
About year ago col John q. Capers.
tho attorney ior the government. nied "a
dcmurfsr to the petition OF Sir. kelm. but
,hs demurrer was Temporarily oyerruicd
by o.. court that tac caSe might be BRET
cd and heard on che factA The case was
.rgucl hast July and has since been unde
consideration by me court. In the mean
time courts unroughou, the country have
bccn rendering decisions on some Of the
points Involved.
The decision today dismiSs.s Mr Kdm's
petition. Justice Davis rendered The de-
rlsion. Wyicn was concurred ia by Chief
Jusice Mott Justice Weldon coneurrcd
In ~ jllgmcn, pro fofma that thc case
may be decided by the supreme court
Justice Pecle dlSscntei and Justice HoWry
took no Iasl In the decision Of the ease,
Justice Davis says In tho decision. after
rc,tcwing the circumstances OF kelms
discharge:
The substantial point In The case con-
Germs the power OF the court to examine
into the course OF an officer OF a principal
executive department Of the United States
In advancing OF degrading or dismlsslng
a subordinate VINO has entered the exeeu-
tive service through the recommendation
Of N ci,1l service commission and vho is
also an honorably discharged soldier.
Defendants assert tina, the plaintiff
was not sufficiently competent Ths Is
denied. and an effort is made TO show
that no was competent; that he was dis
mis.,,,i for other reason than lack OF suf'
ncicnt ahlnty, ana that On any EVENT. he
was not given the preference to which on
to,hcrwlsel even terms the former soldier
II entitled
Tue hrst question We have to con-
sldtg h as to our power, May u court
enter an executive department, examine
the acts OF the principal officer. inquire
into his exercise OF discretion. put him,
In effect, upon the witness stand and IN
ycrtlgatc the reasons whicA Influenced
tho exercise of this discretion?
"The plaintiff seeks to show that other
clerks were less efficient than he, and
that these clerks were retained while he
was discharged. but who Is TO decide as
TO This efficiency. the superior admins
trativc officer. responsible for the efficient
conduct OF his office. and dependent upon
this for his reputation and tenure; the
officer presumably competent and upright
and always subject TO still superior exec
utlve control and legislative supervision;
Is ne TO decide this. or are the courtsg
THE civil service laws provide for en-
trance into government employ; they di-
rect that tother things being equaD the
soldier snail have preference, but some
one In authority must in each instance
decide whether the former soldier has
placed himself In such a position of equal
lly with his colleagues as to be entitled
to the statutory advantage.
AS broad principle, the power to ap-
point implies the power to remove people
ex rel. Mccullough V, cram. S6 n. Y, Sup,
c., mo, The supreme court of the
United States Tex parte Hennen, II Peters,
9SO Parsons V, U, s., 80 c. Chs, 49, and
i6I. U. s., $40 have held
"'There can be no doubt that these
clerks hold their office at the will and dis
cretion OF the head OF the department