Year: 1871

WASHINGTON, September AK
erman, the u. s. Attorney General,
has prepared and published an elab-
orate opinion, in which he holds that
| the Congress, by the appointment OF
an Examining Board to determine
the fitness of Federal appointees to
office, deprives Grant of his constitu-
tional rights and powers. The sum
and substance of the opinion Is that
the President is invested with the
right by the supreme law, and Con-
gress can neither modify nor restrict
nor destroy the rights of the Chief
Executive.


Akerman says an examining board,
organized under an act of Congress,
could instruct the Presidents con-
science but cannot affect his Judgment
or will. The Attorney General goes
on to say: "The other question pro-
posed by the Commissioners is this:
Nav the President, under the act by
which this board is organized regulate
the exercise Of the appointing power
now vested in the heads of Depart
ments or in the courts of law, so as to
restrict the appointments to a class OF
persons whose qualifications shall
have been determined by an exami-
nation Instituted independent of the
appointing power. My opinion is
that he may have the appointing
power and alone can designate an indi-
viduaI for an Office. Either Congress,
by direct legislation, or the President
by authority derived from Congress,
can prescribe the qualifications and
REQUIRE that the designation shall be
made out of q class of persons, ascer-
tanned by power of tests, to have these
qualifications, and it is not necessary
that the Judges in these tests should
be chosen by the appointing power.


Attorney General Legare h 8 given
an opinion upon q question similar in
principle. Discussing the subject OF
the apDOintment of Inspectors of Gus
toms bv the Secretary of the Treasury,
he considers that it would be a fair
constitutional exercise of the power OF
Congress to require that the Secretary
should make an appointment out OF a
certain number Of nominees proposed
by Collector. 4 Opinions, 164.


The act under which the present
Civil Service Commission has been
organized gives the President author
ity to prescribe such rules and reguia-
tions for the admission Of persons into
the civil service of the United States,
as will best promote the efficiency
thereof, and his very ample authority
will certainly embrace the right to
REQUIRE that persons admitted to the
service shall have been found quail
fed by competent examiners.


1t has been argued that g right in
Congress of selection implies right
to the designation of a particular indi-
vidual, bnt l do not think this is fair
conclusion. Congress could require
that all officers shall be of American
citizenship, of a certain age; that
Judges should be of the legal profess
sion; and still leave room to the ap-
pointing power for an exercise Of its
own Judgment and will and am not
prepared to affirm that to go further
and REQUIRE that a selection shall be
made from persons found by an eX-
aiming board to be qualified in such
particulars as diligence, scholarship,
integrity, good manners and attach
ment to the Government would inn
pose an unconstitutional Limitation in
the appointing power. 1t would still
nave n ICd5O1AnDAC bSOfO AOA 10 Wv A
Judgment and will. But it may be
asked at what point may the
contracting process stop? L
confess my inability to answer,
but the difficulty of drawing
a line between such limitations as
this and such as are not allowed by
the Constitution is now proof that |
both classes do not exist. In consd- |
tutionaI and legal inquiries, right or
wrong is often question of degree; |
yet it is impossible 10 tell precisely |
where the scale of right ceases and |
wrong begins. The questions of ex-
cessive bail, cruel punishment, heavy |
damages and reasonable doubts are |
familiar instances. In the matter |
now in question it is not supposable |
that Congress or the President would |
require of candidates for Office quail |
fications unattainable by sufficient |
number to afford ample room for q |
choice.


Very respectfully your obodient ser
want.


Tsignedl A. 7. AKERMAN,


Attorney General.