Evening star. [volume] (Washington, D.C.) 1854-1972, 1899-07-10
Civil Service Commission on Con-
troller Tracewell's Decision.
A REVIEW y Els ARGUMENT
Withdrawal of a Position From
Classification.
THE PRESIDENTS RIGHTS

| Inc civil StTFlCo COMMISSION mas made
public the following letter to the Secretary
OF the Treasury, asking that the controller
Of the treasury be requested to review his
recent decision in The matter of the al
legged Illegal appointment of deputy United
| States marshals.
Sir: The commission has the honor to &C
knowledge the receipt of copy of the de-
cision of the controller of the treasury I'M
der date of April l. 1899, holding in brief
that the appointment of an office deputy
marshal without compliance with the pro-
| visions of the civil service act was not a
| violation Of law.
The commission begs to briefly call your
| attention to this decision not in it's bear
| ing upon the status Of the positions of
deputy marshals or of any particular posi-
| ton. but In so far as it affects the entire
| classified service
| section of what is known as the civil
| service act'' provides:
| THAT it shall be the dutv of said cou-
| missioners-
| First To aid the President, as he may
request, IN preparing suitable rules for
carrying this act into effect and when said
| rules shall have been promulgated it shall
be the duty of all officers of the United
states in the departments and offices to
which any such rules may relate to aid in
| all proper ways in carrying said rules and
| any notifications thereof into effect
Second. And, among other things, said
| rules shall provide and declare. as nearly
as the conditions of good administra ton
will warrant. as follows:
First, for open competitive examina-
lions for testing the fitness of applicants
Ior the PUBIC service now classified or to
be CLASSIFIED hereunder. Such examinations
snail be practical in their character and
so far as may be shall relate to those mat
tiers which will fairly test the relative ca
paclty and fitness of the persons examined
TO discharge the duties of the service into
which they seek to be appointed.
Second, that all the Offices places and
employments so arranged or to be arranged
in classes shall be filled by selections ac-
cording to grade from among those graded
highest as the result of such competitive
examinations"
Again. section 6. paragraph 3. of the
same act provides:
That from time to time said Secretary.
the POSTMASTER General and each of the
heads OF departments mentioned in the
one hundred and ffty-eighth section Of the
Revised Statutes and each head of an Of
flee shall, on the direction of the President,
and for facilitating the execution of this
act, respectively revise any then existing
classification or arrangement of those in
their respective departments and Offices
and shall, for the purposes of the examina-
ton herein provided for, include in one or
more of such classes, so far as practicable,
subordinate places, clerks and officers in
the public service pertaining to their re-
for examination"
The act immedia tely 4goes on to declare
in section Z:
THAT after the expiration of six months
from the passage of this act officer or
clerk shall be appointed, and no person
shall be employed to enter or be promoted
in either of the said classes now that
may be arranged hereunder pursuant to
said rules until he has passed an examina-
ton, or is shown ito be specially exempted
from such examination in conformity here
with" =.
1t will be seen that the provision quoted.
from section 2 of the act Jprescribes in man.
datory terms the manner in which ap-,
pointments to the classified service shall be
made, and that the provision quoted from
section expressly prohibits the making
of such appointments in any other manner:
The Language of Congress. d
1t would seem hardly necessary to point
out that no part or these provisions is the
language of the resident used in any rule
regulation, instruction or order, or that
these are not the words Of any executive
officer. These provisions are clearly the
language of Congress declaring that "a GER
tain things shall be done 90 how they shall
be done, and 90 enjoining the various Off
GERS Of the government to render the proper
aid in doing these things and in the manner
prescribed Surely 1t cannot be seriously
contended by any one, much less q lawyer,
that these provisions are not law and of
legal force and binding effect II not then
1t must be concluded that no enactment of
the legislative branch Of the government is
law.
1t seems necessarily to follow that the
appointment Of person to a position in
the classified service by any other means or
method than as prescribed in the provisions
quoted is an absolutely unlawful act on the
part of the appointing officer, because 1t Is
not only contrary to the provisions of law.
out because such appointment is prohibited
In express terms of the law. Such action
OF the appointing officer is, then, void The
person thus appointed occupies a position
not only without authority of law but |
against the express prohibition of the law, |
and consequently the occupant has no right |
to any emolument or compensation accru- |
Ing by reason of unlawful. void and pro- |
hibited acts on the part not only of the |
appointing officer. but also of the appointee |
himself. |
In view of the foregoing, it must be as
sumed that so long as position once |
regularly brought into the classified service |
Is not excepted or removed from the re- |
quirements of classification, the controller !
does not and could not intend to hold that |
appointment to such position can legally |
pc made except in the manner pres cribed |
oy the provisions of the civil service law |
ABOVE quoted, and that a person appointed |
In any other manner to such position is en- |
titled to compensation arising from such |
appointment.
Reviewing the Controllers Argument |
While the commission Is not quite clear |
as to the controllers line of argument. |
hioH d careful analysis OF MS letter to the |
marshal. and a separation of what may be |
taken as his points of argument from ex-
pressions of sentiments not pertinent to |
the question before him, the skeleton OF |
the reasoning upon which he seems to hinge
mis- decision may, most fairly and favora-
bly, to him, be stated somewhat as follows: |
~ The President Is Authorized by law to
direct the classfficatioH of a position; (2) |
this authority impliesi authority to direct |
that the classification fI6f such position be
revoked or Waived or he is also author
lied by the same law to- at any time except
such position from fundamental require
ments Of the act as to position in the cassi-
fled service Cor to waive" such require
ments). provided, rim his discretion, such
exception Cor "waivingiO is necessary; 80
In obedience to the direction of the Presi-
dent the proper Characteristics such posi-
ton; a. afterwartt inemaking an appoint
ment to such posittoH contrary to the pro-
visions of the prescribing the manner
OF appointment to tthe classified service the
appointing officer is ACTING as the agent of
the President, and, hence his act is the act
Of the President; and Ysl in thus revoking
(or "waiving'D the prdsr of the classified
ton, and in thus excepting the position
the President is pniy Exercising, through
his agent. authority deriyed from the law.
The whole matter, then. resolves itself
4