The sun. [volume] (New York [N.Y.]) 1833-1916, 1898-02-08
pFNovALPOwER DEFINED.
.unor KIRKPATRIoK RIDDLES
dODu"y SERVICE RULES HUMBUG.
-.,0, psru,ed in the Case or Three Jersey
nsnn,y collectors who Claimed she Pro-
."n,,on or the civil Service Active
'',Sa Rights in Omoes.n says the Court.

-..,nov \. J., Feb. I'm the United States
r,rcuit Court to-day. Judge k~ifkpatriok nioo an
onO disso,ying tho restraining ordor and re-
oplnt an Injunction in the case OF r. Harry
iasln n Iyiliom ]. Casper. and BENJAMIN p.
rsEV ,,,oy deputy collectors Of internal revenue,
"".a,sht 70 prevent Collector Isaac Mofett
", ~ Eirst New Jersey district from removing
.. y. tom, office. Collector Moffett was APP
tn1m d IN Oct. 81, 1897. and on Nov.
y ~ Nv orrointed as deputies Charles H. Ellis. Jr.,
nSnason Thomas i. Austin Of Millville. and
.,oinh Ernst OF Toms River, Republicans. Tho
~ annrt,es are Democrats. and two Of them re-
80 20 surrendcr their places. ~contending that
- ,roro nrotected by tho Civil Service act
Soorcr gave up his place, declaring his belief In
~ doctrIno that ITO the victors belong the
sno,s" Before he resigned his name had boon
XII n one OF tho complainants In the papers
dawn n test the right of Collector Mofett TO
s.rove the other two deputies, and 1t was per-
mitted to remain In the case.
indigo Kirkpatrick, who gave the decision, 10
.n.moerat, having been appointed by Presi-
s.rt CLEVELAND in 1895. Decisions had been
a,v.n In similar cases in Indiana and West Vtr-
s,n,a IN the former state the conclusion reached
s.r,no been the same as that rendered by Judge
u,,tna,rick. while In West Virginia the decis.
ian vas that tho deputies could not be removed
.ycent for cause. The Treasury Department at
Warrington has been greatly interested In tho
ortoome Of the New Jersey case, and Collector
sso1ett has made several visits to his superior
amoors for consultations while the proceedings
were pending.
In bis opinion Judge Kirkpatrick says:
"Tbe bill alleges that the compliments are
officers OF the United States appointed by tho
Collector for an indefinite term Of service; that
tho office Is one within the classified service and
subject to the provisions Of AM act to regulate
the civil service OF the United States approved
Jan. 10, 1883. and that under the rules, and
s Gssu H. nnl psSmu ssstes * they the oa pnss,a' b.
p re- therefrom except, for causc and
upon written charges fledi mi, and no Fl which aSa
s an yopp saTu to make defence. They also
siioge that no cause for their removal has been
assigned, nor has any notice been given them,
saSf SEe They charge that their removal Is
made solely for political reasons, contrary to tho
true intent and meaning OF the civil service
mulRated by the President under the authority
thereof and section 1888, of the Revised Stat
utes Of the United States.
Judge Kirkpatrick says the deputies are ap;
pointed under section 3.14s of the Revised
Statutes, as follows:
Each collector shall be authorised to appoint. by
CQ lnbtTumeut III "IlttuBs hut hoL Anu M Aiehg
psSsated for their services. and to revoke any such
appointment, giving such notice thereof On the Com
missioner OF internal Revenue may prescribe.
"That the persons appointed deputies arc off,
GERS of tho United States" says the opinion.
need not for the purposes of this application DO
denied, nor does 1t seem open to question that
the power Of their removal rests with the APP
pointing power-the Collcctor-subject to such
Of Internal Revenue may prescribe. These rules
OF the Commissioner of Internal Revenue. II any
there be. cannot have the force and effect OF
justify the interference OF a court OF equity.
THE power of removal which by the act vest
ed in the appointing power. subject though 1t DO
appeal to the courts. Tho result would be
breaking down Of all discipline in every admin.
i~strative department, Of the Government; But
Collector Of Internal Revenue is in the classified
service and subject to the provisions of what is
esslsS ths Si prom ssfxase BY By the an fr ssS ante 81 e shs
United States in respect thereto. and particu-
larry rule II as amended July 81, 1897.
section 10 ' j. 75 sS 81 the q Rs R y s ssstse n a nidn t Rs
On \; Nov: 2 1895, promulgated certain rules for
Which, 11s fsSq hoWsHef S' p sHs Sisst 'G remoSal n0h from 9a
office except for political or religious opinions;
snd on July 20, 1897, by the same authority.
amended 80 as to read as follows:
"'No removal shall be made from any position sub.
!sct to competitive examination except for just
pointing onicer. and OF which the accused shall have
full notice and an opportunity to made defence
1T will aid us in determining the force and
regulations to look at the power which 10 vested
~ the PRESIDENT BY section 1.753 Of the Revised
authorizes the President to prescribe such
regulations, for the admission. Of persons
into nth the civil service Of The United States
nowhere makes mention of removals. The Civil
Service act merely provides the machinery for
may be procured a list Of persons properly quail.
NED to perform the duties of the several Offices
o. me Government, and from which those in:
make their selection. Its object was to
make more efficient the public service
Sy Limiting the power Of appointment TO
away the right or privilege OF any one
70 nominate persons whose fitness was purely
pohlcal; 70 provide for each vacant office in the
pu9ic service as IT occurred some person who
M IN q competitive examination shown him
t IN G Ss LADS adapted to the discharge of Us duties;
SuSs ma nSV IN 50 obtained his office. this person
i NJ ny 10 90 Obliged to contribute to any po-
nucai fund or render any political service, nor
40 = Subject to removal because he failed TO do
~. nor because he refused to make contribu-
POLITICAL purposes. ~ :"
ebarrnhsss act act saves TO persons honorably dis.
n nre ohited states the preferences conferred
upon them In former acts, and reseryes 10 the
aresioent any authority not inconsistent with
sae power conferred by section l.753 OF the Re-
slsea STATUTES. Except as mentioned above the
sct puts no restriction upon the power of re.
M aa u leaves the appointing power as FREQ
Q ueloTe us passage to make renewals at will.
save only Tor refusal to contribute TO p%oliticai
u = OF neglect to render political service.
sa7n prescribing regulations to promote the
nniSiency OF tho public service, the President
r No. no ao9bt promulgate rules, relating TO the
ahaar.aa Of persons IN Office, which shall be
wsv Seo py MS subordinates In order that there |
ssvssra u = harmony OF action throughout the
%binb departments Of the Government Of
W Wnvh No Is the head. and he may In various |
SrdInetan obedience to these rules by his sub
viii NE ne may make these rules accord |
istratinns oWh views of the proper admin.
revota u the law. He may modify or even
from linn no IN Today, and he may change them |
theTctornne 10 Time at his pleasure. They cannot
10 epesled by the joint action OF the iepisl.. |
ment. N'parIihehts OF the Govern
forc me these rules and regulations NAV bave |
istr .u ana eject OF law upon subordinate admin.
! atane 9nlcers. they cannot give TO oficehold.
~ NJ ovs.ed rights In their Offices. nor can n court
settSduity regard them as conferrinr nronerty
tsscni winch 1t is within their province to- pro.
tectiiomnat q court Of equity is limited to the pro- |
tS. o nW OF rights OF property clearly annoers in
n "TpraSe OF sawyer. In which Justice GRAY Of tba
uple.. or Uince ana Jurisdiction Of a court OF eouitv |
prOtectinn nsen ny express statute, are limited Ia az
S'N"oi rRhts OF property,