Evening star. [volume] (Washington, D.C.) 1854-1972, 1899-07-10

| Hef, atleuQeQ Dy the same degree OF Tor
mality and solemnity as is expressly re-
! CURED to bring a position into the classi-
ned service. 1t is impossible to escape the
conclusion, then, that no position once clas-
| sihed can be withdrawn from the classified
| service. IL at all, except upon q positive and
express direction to the head of the proper
department. or office to revise the classified
ton of that department or Office and ex-
i clude such position and the actual and
express carrying out of this direction on
the part of the head of the department or
office.
The Power to Delegate Authority.
1t is a well-established principle that
when power authority to do a certain
thlng Is derived from statute. such power
| or authority can be delegated to another
only when such right of delegation is also
bestowed by the statute. Note carefully in
this case that not only is the right of dele
CATION not bestowed upon the President
either expressly or implicitly. but also that
the statute places the power to do the
thing solely and unqualifiedIy In the Presi-
dent himself in clear and express terms
| surrey, then the controller has here no
/ warrant OF law for the proposition that the
j appointing officer, as the agent of the Pres
| laeht, can perform an act which is clearly
/ required by the law to be performed by the
| President in person.
But there is still another provision of law
| bearing upon the question of how If at all
| a position may be excepted from the re-
| quirements of the civil service law namely
1 the following provision of section 2: ANY
| necessary exceptions from said eight funda-
| mental provisions Of the rules shall be set
| forth in connection with such rules" Two
| OF the fundamental provisions here refer
red to are found III the quotations from
| section ABOVE, namely: First, the require
| Ihent OF open competitive examinations for
tesllng ntness of persons for appointment
10 the classified service; ana second re-
auirenents mat all Offices. places and en-
Payments in the classified service shall he
| iilied by selections according to grade
| from among those graded highest as
| .he result or such competitive examina-
| tlons. While the President is undoubtedly
requirement of examination and certifica-
ton by the commission for appointment
tnereto, nevertheless it should be carefully
mo.eo .nat mere also the manner of making
such exception is expressly prescribed and
consequently cannot be legally made in
any other manner
Inc language of the law is: "Any neces-
sary exceptions from said eight fnnda
mental provisions of the rules shall he set
iortn m connection with such rules IT is
perfectly clear. then, that the President is
without authority of law to except posi-
uon from the requirement of examination
and certification by the commission for ap-
polntment thereto unless he sets forth
such exception in connection with the
rules. and an exception otherwise made is
consequently void. Here, again. then, we
fa1l to ind any support of law for the con-
troler's opinion as to the manner in which
position may be legally excepted from
the requirements of the civil service law
II anything more were needed to show
that the controllers implied agency" ar
sIment must fall. it would only be neces-
sary to invoke the fundamental and we'll
estabnshed doctrines governing principal
and agent
The appointment Void.
To sum up then, the consideration of the
question as to how, if at ALL a position
may be removed or excepted from the re-
Quirements of the provisions quoted from
the civil service law, it is seen that such
removal or exception cannot be accom-
pllshed otherwise than by the actual per-
sonal act of the President himself; that in
the case decided by the controller the posi-
ton was not thus removed or excepted
and consequently the appointment made
thereto without compliance with the re-
quirements Of the civil service law was alb
solutely void, and the occupant was ac-
cordingly not entitled to any emoluments
or compensation accruing therefrom.
It has been suggested that the controller
holds in this decision that the civil service
rules have not the force of law. The only |
civil service rules which apply to the case
before him are those which have been es-
tablished for the purpose of carrying out |
the requirements of the law to exam |
ination and certification Of persons before |
they are appointed to the classified service.
Upon this point it may be said first that |
as already pointed out, there is ample pro- |
vision of the law itself, without resorting |
to the rules at all which makes it abso-
lutely mandatory that no person can be |
legally appointed in the manner in which |
the person was appointed in the case be- |
fore the controller. However, if it were |
necessary to resort to the rules upon this |
point, let us briefly look into the question |
of what would be the force and effect of |
such rui9s
The force and effect of rules and require |
nv officers IL
thorized to promulgate same has repeatedly |
been considered and passed upon by the |
Supreme Court. (See Wayman vs. South |
ard, 10 Wheat, l. 46; In re Kollock. 1875 |
u. s.. 526; u. S. VS.. Symonds, 120 U. s.. 46; |
Morrill, vs., Jones. 106 U. s., 466, and Field |
VS.. Clark. 143 U. s., 649.)
Morrill, VS.. Jones arose upon the follow |
ing state of facts: Section 2502, R. s., pro-
vides, among other things, that animals spe-
ciaiiy imported for breeding purposes shall |
be admitted free of duty, under such rega-
lations as the Secretary of the Treasury
may prescribe. The Secretary made a regu-
lation that only such animals should be adj
mitted free as ARE of superior stock, adapt
ed to improving the breed in The United |
States" Certain animals were imported
specially for breeding purposes, but ii was
not satisfactorily shown that they were of
superior stock. Duties were exacted and
suit was brought for the recovery of the |
amount paid. The court said
THE Secretary of the Treasury cannot by
his regulations alter or amend a revenue
of proceeding to carry into effect what
Congress has enacted. In the present case
we are entirely satisfied the regulation
was in excess of the power of the Sec
rotary. The statute clearly includes ami
mails of all classes. The regulations seek !
to confine its operations to animals of 'su-
perior stock This is manifestiy an at
tempt to put into the body of the statute
a limitation which Congress did not think
it necessary to prescribe"
On the other hand the Kollock case arose
upon the following state of facts: The |
statute required retail dealers to pack oleo-
sold by them in suitable pack
ages to be marked and branded las the
of internal revenue, with the
approval of the Secretary of the Treasury, |
shall prescribe" The commissioner, with |
such approval. made regulations prescrib-
ing how such packages should be marked.
having sold packages of oleomar-
garine not marked as prescribed by the
regulations, was indicted for violation of
the statute. The court in this case said:
THE designation OF the stamp marks
and brands is merely in the discharge of an
function, and falls within |
the numerous instances of regulations need |
full to the operation of the machinery of
particular laws, authority to make which |
has ALWAYS been recognized as within the |