Evening star. [volume] (Washington, D.C.) 1854-1972, 1899-07-22

| should not hesitate when convinced that
| the law had been SO violated, to do my
duty, ana IN proper case withhold pay
ment of the salary of such Illegal ap-
pointee.
1t is not only the duty of the President.
the heads of departments and the con-
| troller of the treasury TO obey the civil
| service law, but II is equally the duty of
| the civil service commission to obey and re-
Spect its mandates.
AS before stated, rule 3 thereof which
| is an integral part of the law, and not d
| rule or regulation of the civil service COM
| mission or the President, commands that
the departments at Washington shall be
! apportioned among the several states and
! territories and the District of Columbia
! upon the basis of population as ascertain
| ed at the last preceding census.
Charge Against the Commission.
1t has been charged, and not in so far as
I am informed officially controyerted by Mr..
| Proctor or the commission, that an inspec-
ton of the official register will disclose the
| fact that the District of Columbia and sur
rounding states have much larger repre-
sentation in the classified service in the de-
| partments at Washington than they are en-
titled to by law. IL such be the case 1t is
| a plain violation of the letter and spirit
| of the law, for which violation the commits
| sion is directly responsible for heads of
| departments are confined in their selection
| of persons to fill these places to eligible lists
| furnished by this commission.
| III this charge be true, 1t would seem that
| Mr.. Proctor would be more profitabiy en-
geged in removing from the official eye Of
| his commission this beam of violated law
than in rushing into print. during my alb
sence from the city, and attempting to
| point out to the public judicial note of err
| ror, which has no existence in fact, in one
| of my decisions
| If such appointments have not been ap-
| portioned among the several states and ter
! ritores according to law, it would seem
| that all such made in violation thereof are
| unlawful, which would leave for careful
| consideration the question to the rights
| of such incumbents to receive salary
! AS result of this and other uncontradict-
ed charges, and the fatal use that eX-Presi-
| cent Cleveland made of the discretion vest
| ed in him, by section 6, of what when prop
| erly and conservatively administered is a
| most wise and just law, to direct from time
| to time the further classification of places
| to wit, his blanket order of 1896 wherein
| he covered with the folds of civil service
| protection thousands of persons who came
| into the public service through party influ-
| ence, and through it alone Congress has
| assumed a hostile attitude to the merit sys-
| tenn, as witnessed by exempting the entire
| force of the census bureau from the opera
| ton of the law, and also the temporary
| force of clerks made necessary by the re-
| cent war with Spain
A good system is more apt to be endan-
| gered by incompentency in its administra-
! ton and by the INSTRUCTED zeal of its in
| tChpclale 1flehuS IMAM by the open nos
| t1lity of the unthinking and uniformed
| masses.
Briefly reverting to the two Objectionable
| points of my decision of April l last as
| viewed from the standpoint of Mr.. Proctor
| let me consider for a moment whether they
| are correct enunciations of the law.
| Power of the Head of Department.
I held that the action of the President
| directing or ordering the head of depart
| ment to place certain position not placed
| In the classified service by the law itself, is
not law, but an executive regulation, and
that l would not go behind the certificate
| of appointment of the head of the depart
| ment and inquire into the fact as to wheth-
| er, in making such appointment, he had
violated such executive regulation.
Mr. Proctor contends in his letter that
| such direction of the President-as he calls
! 1t, RULES made. and necessarily made,
! by virtue of the following provision of the
Pendeton act:
And any necessary exceptions from said
! eight fundamental provisions of the rules
| shall be set forth in connection with such
| rules, and the reasons therefore shall be
| stated in the annual reports of the COM
mission
| And that in order to take out of the clas-
sified list any office, place or employment
| once directed by the President to be placed
! therein, such act of exemption must be ac-
companied-if he has such power at all,
| which he now disputes-with the same
| placed them in such classified list, namely
| by formal rule of modification
In all these assumptions he is plainly
mistaken.
! tai rules of the Pend1eton act which the
| President is required by the language above
| quoted to set forth in connection with such
! rules, If he concludes to modify any prin-
chile contained in the said eight funda-
mental rules. have reference whatever
to his action in directing that such offices,
places or positions not by the terms of the
act itself placed in the classified service
shall be so placed therein, but refer en-
urely. as the language clearly imports to
his act in modifying or making exceptions
to the principles laid down in the said eight
fundamental rules. He does not even de-
rive his authority from these eight funda-
mental rules to direct any position to be
placed in the classified service. He derives
his authority wholly and solely to direct
future ciassifications from section of the
civil service act BY this section he is
authorized from time to time in his dscre-
tion to direct his several heads of depart
mentS and the heads of other offices to
make further and additional classifications,
and bring other Offices places and positions
into the classified service AS to how, or
the manner in which he shall make such
direction, the act is utterly silent Such
future directions by the President bringing
into classification places or positions,
whether made orally or with the formality
and solemnity thought to be necessary by
m,
and not the act of Congress bringing these
future classified positions into the classified
service by the act itself but they are so
brought in by the direction of the President
by an executive order or regulation wit
| Messing that he has SO directed.
Executive Orders Not Law.
This act of dfrection-calI it rule or
order or what you willis not a law. The
President cannot make law If 1t were
law he could not, as before stated, repeal
or waive it. 1t is reserved to the creator
of the law to work its repeal. The crea-
ture is never greater than its creator. The
law-making power can repeal law; so the
power making a regulation may repeal or
waive such regulation.
1t has been held time out of mind in this
office, long before there was civil serv-
ice commission, by such able lawyers and
officers as Whittlesey, Tayler and Law
renee. not mentioning its later incumbents
| that the authority making a regulation
could waive its enforcement, and that any
affirmative act by such power contrary to
the provisions of such regulation would be
treated a waiver.
Deputy marshals were directed by Pres
ident Cleveland his blanket ordar bo,,a