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Home -> Oliver P. Field -> Civil Service Law -> Chapter I

Civil Service Law - Chapter I

1. Chapter I

2. Chapter II

3. Chapter III

4. Chapter III continue

5. Chapter IV

6. Chapter IV continue

7. Chapter V

8. Chapter V continue

9. Chapter VI

10. Chapter VI continue

11. Chapter VII

12. Chapter VII continue

13. Chapter VIII

14. Chapter VIII continue

15. Chapter IX

16. Chapter IX continue

17. Chapter X

18. Chapter X continued

19. Chapter XI

20. Chapter XI continued

Chapter I

Lin a work such as this, the different meanings attached to thejerm
"civil service" must be distinguished. In the first place, itjnust be pointed
out that the phrase has ajwider and a narrower _ being the more common. Even within this narrower meaning the term
has different applications.

Regarded from the broader point of view, the field of public service
is divided into two large branches: the military service and the civil serv-
ice. The phrase "civil service" has, however, now come to have a more
restricted meaning in both the lay and the legal literature of the United
States. It refers to that portion of the broader field of civil service that is
governed by the merit principle in the selection of officers and employees*

Qn this work two different aspects of the narrower use of the term
will be constantly referred to. In the first place, coupled with the definite
article, "the civil service" describes a branch, an organization of the pub-
lic service, a group of offices, to which the merit principle applies. In the
second place, "civil service" without the definite article is used to describe
certain procedures of recruitment and personnel management; in this
sense it refers more to a process or method or principle of personnel man-
agement than to an organization. It is in this latter use that the term
"merit system" applies, as distinguished from the "political system" or
the "patronage system." It is possible to distinguish between the two
meanings of the phrase only by reference to the context. 1 ^

The term "civil service law" may likewise have a broader and a nar-
rower application. In a broader sense the law of civil service is a branch
of the law of public officers, which in turn is a part of the more general
subject of administrative law. It is more commonly used in the narrow
sense of the constitutional provisions and statutory regulations imposing
the merit principle in the selection of officers and employees and regulat-
ing such matters as promotion, transfer, leave of absence, and discharge.
The law of civil pensions as such is not dealt with in this volume. A
pension law applicable to government officers and employees may or may
not be limited to those who are in the particular branch of the adminis-
trative service that is covered by the civil service act or acts. 2

1 For a discussion of the meaning of the phrases "civil service" and "civil service re-
form," see Ward v. Leche, 189 La. 113, 179 So. 52 (1937).

8 Griffith v. Rudolph, 54 D. C. App. 350, 298 Fed. 672 (1924).


It should not be thought that the factors of merit and fitness in the
selection of public servants were first introduced into the law by civil
service statutes. For many years has required particular and
specified qualifications for certain types of office or employment, and in
several instances provided boards of admission and of examiners for the
numerous professions and trades. Nor should it be thought that under the
political system of appointment the technical work of the public service
was done by laymen; even some of the statutes recognize that such a prac-
tice would be unwise. A carpenter could not be appointed to do the work
of a lawyer merely because he was to work for the government. It is true
that the best qualified man might not receive the position under that
system, and it often happened that a poorly qualified person did receive
it. But it was in the more general types of administrative work, such as
management, nontechnical inspection, and law enforcement, and in cleri-
cal and other subordinate fields, that the patronage system flourished
particularly. The merit principle embodied in the civil service laws and
their provisions on personnel administration represents only a broader
application of the practices that were applied piecemeal by statute in al-
most every state and city for many years prior to the adoption of a general
civil service law. It may be added that provisions regulating causes and
procedures in the removal of an officer or employee were not unknown in
the law of public officers, but these do not form a part of the civil service
law, as that phrase is commonly understood at the present time. Most
civil service laws contain special provisions of their own upon these sub-

There is little agreement among the various civil service acts when it
comes to defining the civil service to which their provisions are to apply.
In recent legislation, and in some of the constitutional provisions that
now are to be found on this subject, a more precise and comprehensive
definition of the civil service is attempted. 3 Every well-drafted civil serv-
ice act and every properly drawn constitutional provision should define
the civil service to which it applies. In this way alone can a sound legal
basis be furnished for the merit system which the act or provision is to
support. The civil service system of the national government, as will be
pointed out in more detail later, rests upon a very unsatisfactory legal
basis. The national statutes in effect provide that whatever the president
covers into the civil service is a part of it. This places the national civil
service upon the shifting legal sands of presidential orders. It is not sug-
gested that the details of civil service should be covered in a statute, but
it is suggested that the fundamental outlines of such a service should be

3 The federal statute of 1883 is especially defective on this score. For a more careful
attempt to define the civil service, see the Michigan statute of 1937.


dealt with by statute. It is a legislative function to define the scope of the
civil service and an executive function to administer that service. 4

Civil service law is, like most Anglo-American law, a composite of
statute and decision, the latter making new law as well as interpreting
present and past law. But as is true of all American statutory law, it is
also influenced by the manner in which the statutes are read and inter-
preted by common law lawyers and judges; that is to say, the statutes are
read in the light of the general body of law and the general principles,
attitudes, and concepts of the common law. It is necessary, therefore, not
only to examine the formal legislative act with minute care, but also to
examine the common law of officers as a background for the statute.
Common law rules fill in the statutory gaps as well as help to give statu-
tory words their meaning.

The extent of the civil service law, the units and persons and places
to which it applies in the states and cities, is largely the province of statu-
tory law, 5 but many situations are inadequately covered by either con-
stitutional or statutory law. Thus many states have recently been faced
with the problem (litigated in New York) of "work relief" recipients
being given work in a department whose employees arc subject to
civil service rules. The New York department in question had reduced
its force for reasons of economy. The relief workers were receiving their
money partly from the national government and partly from the state
and local governments. Did this constitute a violation of the require-
ment of the New York law that appointments be made on the basis of
merit and fitness, to be ascertained by examination in so far as that was
practicable? The court, using common law technique rather than sub-
stantive common law rules made some new law when it decided that in
the presence of good faith on the part of the administrators, the use of
relief workers to perform some of the tasks that otherwise would have
been performed by civil servants was not a violation of this requirement. 6
The constitutional provision was aimed at the "conventional and stable
duties of the functionaries of the civil government. Its aim was to sup-
plant by a merit system a spoils system of office holding." The court
issued a warning that the reason and reasonableness of the practice in
the light of the surrounding circumstances would not, however, permit
an unlimited extension of the practice so as to impair seriously the merit
principle. 7

*See Mayers, The Federal Service (1922). On the relation of courts to a state system,
see Rice, The Function of the Courts in Enforcing the Wisconsin Civil Service Law, 2 Wis.
L. Rev. 257 (1923)-

8 People v. Dalton, 158 N. Y. 175, 52 N. E. 1113 (1899).

6 Social Investigator Eligiblcs Association v. Taylor, 268 N. Y. 233, 197 N. E. 262


7 Social Investigator Eligibles Association v. Taylor, supra, note 6.


Civil service statutes may repeal prior laws that are inconsistent with
them, and may do so either expressly or by implication, 8 although courts
do not favor repeal by implication unless the legislative intention to re-
peal is clear. 9 It is, of course, possible for the legislature to handicap the
administration of a civil service act by failure to make appropriations,
but such a failure to provide money does not operate as a repeal of the
civil service statute.

The detailed effects of a statutory law of civil service upon the general
rules of public employment and upon the status of public employees and
officials 10 will be considered in succeeding sections. The arrangement
will follow as nearly as practicable the various stages in the establishment
of a civil service system and in the administrative application of that

8 8 Ops. Atty. Gen. 245 (1885). Dovcrspike v. Magee, 51 Pa. Super. Ct. 525 (1912).
Civil service act was not construed to repeal earlier protections against removal.

9 State ex rel. Smith v. McCombs, 129 Kan. 834, 284 Pac. 618 (1930). Folk v. Kansas
City, 244 Mo. 553, 149 S. W. 473 (1912). But when a department is abolished by a new
charter containing a completely new section on civil service, that repeals the prior ordinance
on civil service and leaves the department's employees outside the civil service.

10 See the discussion of the relation of a civil service law to contract in State ex rel.
Mattice v. Seattle, 173 Wash. 42, 21 P. (2d) 288 (1933). Query: Is the effect of a civil
service law to leave the status of those to whom it applies midway between that of office
and employment?

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