The evening times., 1899-07-22

heads of departments and the heads Of
other offices TO make further and additional
classifcations. and bring other Offices,
places, and positions into the classified ser
vice.
"As to how or the manner in which he
shall make such direction, the act IS ut
terly 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 Mr.. Proctor, is
then simply regulation, and not the act
of Congress bringing these future classi-
fed 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 witnessing
that he has SO directed.
This act of direction-call ii rule or
order. or what you willis not law. The
President cannot make law.@ II 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 creature
is never greater than its creator. Inc
law making power can repeal law; SO the
power making a regulation may repeal OF
waive such regulation.
1T has been held time out OF mind IN
this office, long before there was a Civil
Service Commission, by such able lawyers
and officers as Whitlesey, Taylor, and Law
renee, not mentioning its later incum-
bents, that the authority making reguia-
ton could waive its enforcement, ana tnat
any affirmative act by such power contrary
to the provisions Of such regulation would
be treated as waiver.
Deputy marshals were directed by Pres
ident Cleveland in his blanket order above
referred to- thirteen years after the passage
of the Civil Service law, for the first time,
to be classified. This direction, 1t is hard
ly necessary to repeat, was not law, but
was at best an Executive regulation nee
essary in his Judgment to carry into ef-
feet, and supplementary to, the law. Judge
Baker, in the case of Taylor vs. Kercheval,
in the circuit court district of Indiana (S2
Fed. Rep, 504), discussing the question as
to whether the regulation for placing dep
uty marshals in the classified service is
law, says:
lit needs neither argument nor cita-
ton OF authority to demonstrate that
neither the President nor the Civil Service
Commission is clothed with legislative
powers. Neither can change the law,
either by repeal or by making a new en-
actment. And 1t is equally elementary
that Congress cannot delegate its legisla-
tive powers either to the President or the
Civil Service Commission. The rules pro-
mulgated which place Office deputies in the
marshaPs Office in the classified civil list
are not a statute, nor have they the force
of law. Tls.y are merely Executive rules
and regulations, promulgated by authority
of law, and are effective, if at all, only as
| rules and regulations for the internal con-
troll and government of the Civil Service
and the Executive departments. The
courts of chancery have no jurisdiction or
authority to enforce such rules or reguia-
tions Their enforcement lies within the
domain of the Executive departments,
which possess ample power TO enforce the
proper observance of and subordination to
| the rules and regulations promulgated by
| the Executive for the government of those
employed in any Executive department of
/ the Government.
With all due Difference to the legal
learning of Prof Proctor / am compelled
4 to believe that Judge Baker is right and
| he wrong in this instance.
1T then appears that the place of deputy
marshal had been directed by the Presi-
dent TO be placed in the classified service,
waving the point, as / waived 1t in my
letter of April last as to whether deputy
marshals could be legally directed by the
! President to be classified. and waving the
point, as did in such letter. that Marshal
| Grady appointed the Office deputy Instead
of the Attorney General, what are the pre-
sumptions to be INDUCED?
The President has promulgated regu-
| lation requiring his head of department,
the Attorney General, TO, appoint, deputy
marshals from lists of eligibles furnished
| by request by the Civil Service Commits
sion. Who is the Attorney General, in a
legal sense and what relation does he bear
to the President? He, together with the
several other heads of departments, are
the eyes and hands Of the President, TO
| execute the laws and his Executive rules
| and regulations: their acts are in sense
his acts; when they waive regulation
he valves 1t: for they act for and repre-
sent the power and authority OF the Presi-
! dent.
would Mr.. Proctor have had me in the
Grady case summon the President of the
United States before me at my office in the
Treasury building in order that might
enquire as to whether he was, through d
| member of his Cabinet, violating one OF
his own regulations in appointing this
deputy marshal? II Mr.. Proctor is correct
the mountain would either have to come to
Mahomet, or Mahomet go to the mountain
| 1t would indeed be sight for the gods and
men TO see the Comptroller Of the Treas
ury catechizing the President OF the United
States in order to ascertain whether he hal
| consented to an act performed by one ol
his Cabinet which could be nothing more
nor less than a waiver Of a regulation. The
mere statement of the proposition carries
with it a sense Of the ludicrous
"If Mr. Proctor Is sincere in his efforts
and i grant him sincerity, but not at all
times good judgmeht-to improve the mer-
il system. let him pursue manly course
If the heads of departments are violating
the Executive order of the President rela-
tive to the Civil Service law. let him &c
to the President, as is his duty under said
law, and report the particular violation
and in my judgment the President, who
was one of the champions Of the law in
| Congress- and whose every private and off,
cial act since that time has shown him to
be a true friend of the merit system, viii
find no difficulty in having these rules and
regulations enforced where it is not tc
the good of the public service to waive
their enforcement and to properly pun
ish and discipline even member of his
Cabinet who should dare to violate them
either in letter or in spirit.
Mr. Proctor has not seen fit to take this
course. AS / am reliably informed, up tc
the present hour he has not reported &
single case to the President of the viola
ton of single rule or regulation of the
Civil Service law, made either by the
President or the Commission, at the hands
of any head of department.
Permit me- in concluding this letter
already too long, to say that this shall bt
the closing Of this incident in SO far as
am concerned, and that / fully adhere tC
shall Grady.
Respectfully yours,
"R. ]. TRACEWELL.
Comptroller"
The Census Building Site Decided.
deed was put on record today by Mar.
G. Emery conveying to Matthew G. Emer,