Evening star., 1902-03-08
THE NEW CENSUS LAW
Provision Regarding Reten-
tion of Clerks.
SECTION 5 CONSTRUED
ACTION OF THE CONFERENCE
COMMITTEE.
Nothing in the Bill Reg arding Trans
fer Of Persons to Another
Department.
SECTION 5 CONSTRUED

department.
A lawyer Of wide reputation. whose in
terest in the census bureau and the civil
service commission has been generally rec
ognized. was interviewed by a reporter fer
| The Star this morning on the permanent
census act. approved yesterday by the
President. The interview follows:
What will you say regarding the
| struction Of section 8 Of the permanent
| census bill? It reads as follows: That all
| employees of the census office, at the date
| of the passage Of this act, except unskilled
| laborers, may be appointed by the director
! OF the census. with the approval OF the
| head Of the department to which said CEN
| sus office is attached, and when SO appoint
| ed shall be and they are hereby placed,
without further examination, under the
| provisions of the civil service act approved
January 16, 1883, and the amendments
| thereto and the rules established there
| under; and persons who have served as
| soldiers in any in which the United
States may have been engaged, who nave
| been honorably discharged from the SER
vice of the United States, and the widows
Of such soldiers, shall have preference IN
the matter of employment; and all new ap-
pontments to the permanent clerical force
in the census office hereby created shall
be made IN accordance Win the feiuiFe-
| ments Of the civil service act above referred
to-
Clause Not Mandatory.
'The provisions Of section five was the
answer, do not contain any requirement
that transfers shall be made to other
branches Of the service. Indeed, they do
not contain any actual requirement that
the census Office shall be classified at all.
The words are that all employees
may be appointed by the director OF the
census with the approval Of the head of the
department. The words are permisslVe and
not mandatory. By selecting the word
may in place Of 'shall-the word which is
used in the last sentence in this section
Congress evidenced it's intention or leaving
the discretionary power to appoint or not
to appoint, and thereby to classify or not
to classify, in the lands of the director, sub
ject to the approval of the head OF the de-
partment. The original bill as passed by
the House and then by the Senate, did not
&C ntain any words in regard to a new ap-
pointment by the director with the approval
Of the head Of the department. 1t simply
provided that all employees at the date of
the passage Of the act should be placed
without further examination under the pro-
visions Of the civil service act The words
providing for an appointment by the direc-
tor were added by the conference commit
tee"
Action of Conference Committee.
Of the conference committee?"
THE reasons for this are stated in the
report Of the conference committee Of the
House as follows:
Section five Of the proposed bill pro-
vides for the appointment of the present
employees Of the census office by the direc-
tor of the census with the approval of the
head Of the department to which said Of
flee is attached. The conferees examined
a number Of the decisions of the Supreme
Court Of the United States and found that
the chief officer of a bureau attached to
an executive department Is not the head
OF a department within the meaning of
article II, section Of the Constitution, SO
as to authorize Congress to vest in him
the power Of appointment. 1t is proper,
however, to provide that the chiefs OF bu-
reaus shall make the appointments with
the approval of the head of the executive
department. 1t is believed that the sec-
ton submitted by the conferees will effect
the wishes of the members of the House.
IF the bill had provided that all the pres
ent employees shall be appointed by the di-
rector, with the approval Of the head of the
department. this would necessarily nave
taken away from the head of the depart
ment all power Of choice, which is the very
essence Of the power Of appointment. The
words Of the bill are: All employees, ex-
cept unskilled laborers, may be appointed.
In legal intendment ALI includes ANY, and
the power to appoint ALL If discretionary,
includes the power to appoint part of the
employees and not the rest. If the director
of the census shall fail or decline to make
these appointments, or If the head Of the
department shall fail to approve Of the ap-
pointments SO made, that will end the mat
ter; the present employees will not be ap-
pointed and will not be classified
Transfer of Clerks.
"As to the transfer Of census clerks under
the new law-are any of them eligible to
transfer to the executive Departmental"
"Certainly not. The law provides for no
transfers whatever. 1t does not even have
the appearance Of providing for any such
transfers."
WAS it not the intention Of Congress to
have all employees eligible for transfer to
the other Departmental?
The intention of Congress must be gath
cred from the bill itself. If Congress had
intended that these employees should be
eligible for transfer, Congress would have
said SO. In the bill Congress did not say so.
On the contrary. the committee of the
House of Representatives which reported
the bill had before it a proposed bill pro-
viding explicitly that employees Of the
twelfth census should be eligible for trans
fer to or appointment by the heads of the
executive departments to positions In the
classified service. and the House committee
left out that provision when 1t reported the
bill. 1t would seem evident from this that
the members of the committee did not in
tend to require the executive department to
make these transfers They provided that
the permanent bureau should not be organ
lied until the 1st Of July and then left 1t
optional with the director, subject to the
| approval of the head Of the department. to
retain and classify any and all of the pres
ent employees. This will be done exactly in
the way that Congress has authorized" j
Director Merriam and the members OF
the civil service commission were seen to-