Chapter II
CONSTITUTIONALITY AND SCOPE OF
CIVIL SERVICE LAWS
I. CONSTITUTIONALITY OF CIVIL SERVICE LAWS
Inasmuch as most important legislation designed to improve govern-
mental practices is very likely to be challenged on the ground that it is
unconstitutional, and inasmuch as it is necessary either that the consti-
tutional objections to the legislation be successfully overcome in the
courts or the constitution amended to remove any obstacles, it is cus-
tomary to deal with the constitutional aspects of a legislative problem at
the outset of the discussion.
The constitutional problems of civil service legislation can be divided
into two broad classes, arising from (i) provisions in some state consti-
tutions dealing specifically with the civil service, and (2) provisions not
expressly dealing with civil service as a special subject but affecting it in
some particular. 1
A few state constitutions contain provisions on the subject of civil
service. In so far as these provisions affect particular aspects of the service,
they are dealt with in later chapters on those subjects. For example, a
constitutional provision requiring that examinations for the civil service
be competitive in so far as practicable will be discussed both in connec-
tion with the law governing classification (see Chapter IV) and in con-
nection with the law governing examinations (see Chapter V). Such
provisions contain substantive rules of civil service law and are indis-
tinguishable from civil service law generally except in source.
The validity of a civil service amendment to a state constitution is de-
termined by the usual rules governing the subject of amendment, 2 and
the rules that apply to its interpretation are the rules that apply generally
to questions of constitutional interpretation. Whether the amendment is
self-executing is likewise settled in accordance with the rules of construc-
tion applicable to this question. For example, the New York constitu-
tional provision on civil service has been held not to be self -executing; in
1 See Arneson, Constitutionality of Merit System Legislation, 13 Am. Pol. Sci. Rev. 593
(1919).
8 People v. Field, 66 Colo. 367, 181 Pac. 526 (1919).
8 CIVIL SERVICE LAW
other words, it requires legislative action to bring it into operation. 3 The
relationship between the civil service provision of a constitution and the
other parts of the constitution is similarly governed by rules that are not
peculiar to civil service law. 4
That the constitutional provision on civil service is not self -executing
does not mean, however, that none of it is enforceable by the courts as
law. The provision has been said to announce a general public policy of
merit in filling all positions to which it applies. This being true, a per-
son who is employed in violation of the provision has no claim to salary
if he is discharged without reference to the civil service law regarding
discharge. The fact that neither the !v^'v.:i! ! v nor the state civil service
commission has acted to place the position under the civil service does not
alter this rule. 5
In Colorado it was held that the civil service provision of the constitu-
tion did not apply to a board of land commissioners that had been pro-
vided for by the constitution and whose duties, powers, and tenure were
prescribed in detail therein. 6 The court felt that in the light of these de-
tailed provisions, it was not intended that the commission should be sub-
ject to the more general provision dealing with the civil service.
The second phase of the constitutional problem, namely, that dealing
with constitutional provisions that contain no explicit statement concern-
ing the civil service, will be considered first in its national aspect and
second in relation to the states and the local subdivisions thereof.
In the national government the constitutional problems of the civil
service relate first and primarily to the power of Congress to impose upon
the president and the other appointing officers certain restrictions as to
qualifications of appointees and as to persons from among whom ap-
pointments can be made; secondly to the power of Congress to curtail
the removal power as exercised by the president and those other officers
in the national administration who, by constitution, statute, or decision,
may be vested with the power of removal.
The first civil service law, of 1871, at least part of which is still in effect,
authorizes the president to regulate admissions to the civil service. This
authority is sometimes referred to as the power to classify, that is, the
power to determine which positions and offices shall be brought under
the civil service laws. The act of 1883, supplementing and expanding the
statutory civil service law in the national government, provided for a
United States Civil Service Commission and granted to it certain duties
3 Chittcnden v. Wurster, 152 N. Y. 345, 46 N. E. 857 (1897).
* This is brought out in the lower court opinion in People ex rel. McClelland v. Rob-
erts, 13 Misc. 448, 34 N. Y. S. 641 (1895).
6 Palmer v. Board of Education, 276 N. Y. 222, n N. E. <2d) 887 (1937).
6 People v. Field, supra, note 2.
CONSTITUTIONALITY 9
and powers. For purposes of future discussion, the more significant por-
tions of the act are given below: 7
"It shall be the duty of said commissioners :
"First. To aid the President, as he may request, in preparing suitable
rules for carrying this section and sections ... of this title into effect,
and when said rules shall have been promulgated, it shall be the duty of
all officers of the United States in the departments and offices to which
any such rules may relate to aid, in all proper ways, in carrying said
rules and any modifications thereof, into effect.
"Second. Among other things, said rules shall provide and declare, as
nearly as the conditions of good administration will warrant, as follows :
"i. For open, competitive examinations for testing the fitness of ap-
plicants for the public service classified on January 16, 1883, or thereafter,
or to be classified hereunder . . .
"2. All the offices, places, and employments so arranged or to be ar-
ranged in classes shall be filled by selections according to grade from
among those graded highest as the results of such competitive examina-
tions . . .
"5. . . . No person in the public service is for that reason under any
obligations to contribute to any political fund, or to render any political
service, and ... he will not be removed or otherwise prejudiced for re-
fusing to do so. ...
"8. Notice shall be given in writing by the appointing power to said
commission of the persons selected for appointment or employment from
among those who have been examined, ... of transfers, resignations,
and removals, and of the date thereof, . . ."
With respect to removals, a statute of 1912 contained the following
provision :
"No person in the classified civil service of the United States shall be
removed therefrom except for such cause as will promote the efficiency
of said service and for reasons given in writing, and the person whose
removal is sought shall have notice of the same and of any charges pre-
ferred against him, and be furnished with a copy thereof, and also be
allowed a reasonable time for personally answering the same in writing;
. . . Membership in any society, association, club, or other form of or-
ganization of postal employees not affiliated with any outside organiza-
tion imposing an obligation or duty upon them to engage in any strike,
7 For a general discussion of this subject see Mayers, The Federal Service (1922). For
cases see: In re Miller, 5 Mackey 507 (D. C. 1887), writ of error denied, 140 U. S. 690,
ii Sup. Ct. Rep. 1024, 35 L. ed. 763 (1888); Couper v. Smyth, 84 Fed. 757 (C. C. Ga.
1897); Dudley v. James, 83 Fed. 345 (C. C. Ky. 1897); White v. Butler, 171 U. S. 379
(1898). Equity will not prevent violations of the civil service act on removal, but see the
argument contra in the early case of Priddie v. Thompson, 82 Fed. 186 (C. C. W. Va.
1897), also Butler v. White, 83 Fed. 578 (C. C. W. Va. 1897).
io CIVIL SERVICE LAW
or proposing to assist them in any strike against the United States, having
for its objects, among other things, improvements in the condition of
labor among its members, ... or the presenting by any such person or
group of persons of any grievance or grievances to the Congress or any
member thereof, . . . shall not be denied or interfered with."
If the acts of 1871 and 1883 are read together it is clear that they are
intended as aids to the exercise of the appointing power vested by law
in the president, in the heads of departments, or in the courts of law, as
the case may be. The constitution is phrased in such a manner that it is
not clear whether the power to appoint inferior officers is a power which
may be conferred by Congress upon the three groups therein mentioned,
or whether it is a power that may be given by Congress to either of them
or to some other group. It may be viewed as a designation of the presi-
dent, the heads of departments, or the courts of law as the authorities in
which the power may be lodged, or it may be viewed as an authority to
Congress to lodge it in any of them. It makes a good deal of difference
which of these views is taken, because the power of Congress to attach
conditions to the appointing power is differently affected by the different
theories of control over appointment. If the constitutional designation
theory is adopted, then it can be said that the power is one that is granted
by the constitution and that all that Congress does is to furnish objects
upon which that power may be exercised. Under this view Congress
might be limited in the conditions it could attach to the appointing
power.
It is possible to take the view, as the Myers case seems to have done,
that the president stands in a different constitutional position here from
that occupied by the heads of departments and the courts. Although that
view is not consistent with the phraseology of the section, it may be con-
sistent with the spirit of the whole of Article II as interpreted and applied
by all three branches of government.
Nevertheless, whatever theory is accepted, it seems fairly clear that the
regulation adopted in pursuance of the authority of the act of 1883 that
the appointing officer shall be offered a list of three names from which
to make appointment leaves a sufficient amount of discretion with the
appointing power so as not to interfere unconstitutionally with the power
to appoint and the discretion implied in that power. The practice is re-
garded in the law as properly aiding the appointing officer in the pre-
liminary work of selecting qualified candidates. The legislative power
to create offices and fix the qualifications of the incumbents is broad
enough to permit the ascertainment of qualifications by others in addi-
tion to the appointing officer.
With respect to removal, the federal statute places relatively little
CONSTITUTIONALITY n
restriction upon the officer who by law is vested with that power. Ap-
parently it is permissible for Congress to place restrictions upon the
causes for which the official may remove and upon the procedure to be
followed in exercising the power. However, the amount of restriction
that can be placed upon the removal power of the president seems to be
relatively slight, apparently being restricted primarily to procedure; only
in the situations that are covered by the Rathbun case 8 does there seem
to be an exception to this general rule. And this exception seems to be as
weakly established as the political ground upon which the constitutional
ruling is based. No serious difficulty seems to attach to the removal power
as it affects the national civil service. The general theory of the national
civil service law is that a relatively open rear door is necessary to preserve
the political soundness of the civil service, the important thing being to
authorize the closing of the front door to entrants who are not qualified.
The state civil service problem is not complicated by federal constitu-
tional provisions. The Fourteenth Amendment, with its requirements of
due process of law and equal protection of law, does not restrict in any
substantial manner the operations of the state or its subdivisions in the
personnel field. 9 The constitutional problems in state and municipal
civil service law arise from state constitutional provisions.
The objection is advanced at times that inasmuch as changes in com-
pensation are contemplated in the new classifications set up by the civil
service system, the act cannot be applied to appointive officers whose sal-
aries are not to be diminished during their terms of office. Constitutional
provisions dealing with such matters, however, usually refer to officers
rather than to employees, so that the latter are not covered. It has also
been held that unless the contrary is clearly indicated by the phraseology
of the text, such provisions relate only to officers with fixed terms and
not to officers holding for indeterminate periods. 10 Civil service provi-
sions cannot be applied to offices the selection of whose incumbents is
provided for by the constitution. 11
[The suggestion is sometimes advanced that a civil service commission
should be made up of representatives of interested groups, and not of
the public at large in the more usual generalized sense. Labor organiza-
tions may urge that the interests of the employees should be guarded by
8 Rathbun v. United States, 295 U. S. 602, 55 Sup. Ct. Rep. 869, 79 L. ed. 1611 (1933).
Myers v. United States, 272 U. S. 52, 47 Sup. Ct. Rep. 21, 71 L. ed. 160 (1926). For full
discussion see Hart, Tenure of Office under the Constitution (1930), and Executive Leader-
ship in Administration, Chapter 2 in Haines and Dimock, Essays in Governmental Admin-
istration (1935).
"Shelby v. Pensacola, 112 Fla. 584, 151 So. 53 (1933).
10 Middlesboro ex rel. Minton v. Gibson, 225 Ky. 120, 7 S. W. (2d) 825 (1928).
"Stowe v. Ryan, 135 Ore. 371, 296 Pac. 857 (1931); People ex rel. v. Capp, 61 Colo.
396, 158 Pac. 143 (1916).
12 CIVIL SERVICE LAW
a member from their ranks. Employers in the locality may wish to have
their interests represented by special commissioners chosen by themselves.
Affected branches of the administration may likewise wish to choose
their representatives, or if not to choose them, then to have one of their
own number chosen by the appointing officerTjfn Prichard v. De Van, 12
the West Virginia court upheld a civil service provision that established
a commission composed of members chosen by the mayor, by the local
trades board, or failing that, then by an association of paid firemen, and
by the local chamber of commercerjlt was argued that private bodies
could not be authorized to appoint public officers, but the court answered
this by holding that members of the fire department were not public offi-
cers, so that to have a board thus composed make appointments to the
force would not be fatal. Of course, the court probably realized that the
civil service act did not give the board the power to appoint, but only to
assist in the exercise of the appointing power.
The constitutions of many states contain provisions relating to the ad-
ministrative division of the executive department. These provisions do
not mention the administrative branch expressly, but do mention some
of the more historically important administrative officers of the state gov-
ernment, such as the secretary of state, the attorney general, and the treas-
urer. Some constitutions state that the officers thus enumerated are with
the governor to constitute the executive department. In such a section,
duties of these offices are occasionally set forth, the method of selection
is usually specified, and the terms of office fixed. The contention has been
made that a civil service act is invalid because it adds to the list of officers
or boards mentioned in the constitution. It has also been suggested that
to impose civil service provisions upon the incumbents of such offices in
the exercise of their power to appoint subordinates is an unconstitutional
interference with their powers as constitutionally established officers.
These contentions have all been negatived and the civil service act held
constitutional in a state having such a provision in its constitution. 13 It
has been held, for example, that the deputy of an elective clerk of the
state supreme court can be included in the civil service even though the
judicial department in which he serves was created by the state consti-
tution. 14
An interesting illustration of a complete misunderstanding of the legal
theory of a civil service act is to be found in a recent South Carolina de-
cision, Murphy v. Cooper. 15 The question raised involved the power of
a city to apply a civil service provision to a health inspector. A statute
u 114 W. Va. 509, 172 S. E. 711 (1934).
"People v. McCullough, 254 111. 9, 98 N. E. 156 (1912).
14 People v. Brady, 275 111. 261, 114 N. E. 25 (1916).
36 149 S. C. 449, 147 S. E. 438 (1929).
CONSTITUTIONALITY 13
gave the city council power to fix the salaries of health inspectors, but
gave the board of health power to appoint them. The health board in
turn was authorized by a provision of the state constitution, as follows :
"It shall be the duty of the General Assembly to create Boards of Health
wherever they may be necessary, giving to them power and authority to
make such regulations as shall protect the health of the community and
abate nuisances." 16 The court, with apparent unconcern, decided that the
constitution had given to the board of health the power to appoint health
inspectors, and that this power to appoint could not be restricted even by
requiring qualifications of the appointees. Leaving out of view any con-
flict between statute and city ordinance, the court said: "The board of
health is authorized by constitution and statute to select its health in-
spectors without qualification or restriction upon such right, pursuant to
Article 8, section 10, of the Constitution of South Carolina, . . ." The
court reiterated the same idea when it said that "Under Article 8, section
10, of the Constitution the Board of Health selects its health inspectors
without qualification or restriction upon such right." The court seems
not to have seen that in the first place the constitution of the state says
nothing about the power of the board to select health inspectors, although
of course that power might be implied, and that in the second place it is
not a qualification of, or restriction upon, that right to have a civil service
commission make a preliminary canvass of qualified people and submit
its results to the boardT\
Fortunately for American government and for those who believe that
the common law is a law of growth as well as of precedent and logic,
most courts have acted the part of statesmen in the law and have used
legal theory and governmental necessity to make civil service laws con-
stitutionally possible, even though the appointing authority involved may
have come from the constitution itself. The theory upon which civil serv-
ice laws have been upheld as constitutional, in so far as they affect the
appointing power itself, is that the officer to whom the appointing power
is given retains that discretion which it was intended he should exercise
in making appointments, but that as an aid to his exercise of the power,
another body may be given the power to determine the qualifications
necessary for the position under consideration.
Not many courts would go as far as did the Colorado court when it
held that it was constitutional to require the appointing officer to name
the person who stood highest on the list of eligibles. 17 The court limited
the scope of its decision by suggesting that this would not be its view
if the power to make the appointment were constitutional rather than
18 S. C. Const., Art. VIII, sec. 10.
"People ex rel. v. Capp, 61 Colo. 396, 158 Pac. 143 (1916).
14 CIVIL SERVICE LAW
statutory in its source. This MI.IJ^'/OII is in accord with People ex rel.
Balcom v. Mosher, a New York case, which held that discretion required
more than one name, and that a choice between four names was suffi-
cient. 18 Other courts have likewise held that if a choice between three
eligibles is permitted, the civil service law does not unconstitutionally re-
strict the appointing officer; indeed, that instead of restricting him, it aids
him in the exercise of his power. 19
CCivil service laws have been assailed on the ground that they involve
a delegation of legislative power to the civil service commission. This
allegation is generally leveled at the power of the commission to make
regulations for putting the statute into effect, and at its power to allo-
cate positions to the various classes of the administrative service. The
power to make regulations is sustained on the theory that the general
policy is stated in the statute itself, and that it is only in matters of de-
tail that the power is to be exercised. As one court put it, the power
itself is valid, even though an exercise of it might be invalid in a par-
ticular instance. 20 The power of the commission to classify likewise is
not an unconstitutional delegation of legislative power. Nor is the power
to extend the list of positions which are to be placed in the exempt
class, because the conditions upon which such additions are to be made
are set forth in the statute. For example, the law may direct that if
it is found impracticable to give a competitive examination for a posi-
tion, the position shall be placed in the exempt class. Such a provision
is within the principles justifying a delegation of legislative power to
an administrative body without infringing upon the constitutional re-
quirement of the separation of powers. 21 u
\ln general it is held that civil service acts do not violate the separa-
tion of powers with respect to the delegation of judicial power to a
commission. 22 The power of the civil service commission to make in-
vestigations and conduct hearings is not a violation of the rule that
an administrative body may not be granted judicial power. Nor is this
altered by a power to the commission to issue subpoenas or resort to
court to enforce its orders. To conduct a hearing is an administrative
function. To enforce a subpoena by court process is but to make the
usual request that the court do something in which it uses its own
discretion. The action is the court's, not the commission's/)
/Nor is it a violation of the common law prerogative or such admin-
18 People ex rel. Balcom v. Mosher, 163 N. Y. 32, 57 N. E. 88 (1900).
"State ex rel. Buell v. Frear, 146 Wis. 291, 131 N. W. 832 (191 1)-
80 Green v. Commission, 90 Oh. St. 252, 107 N. E. 531 (1914).
81 State ex rel. Buell v. Frear, supra, note 19.
88 People ex rel. Akin v. Kipley, 171 111. 44, 49 N. E. 229 (1898).
CONSTITUTIONALITY 15
istrativc adjuncts of the judiciary as the sheriff to require that his sub-
ordinates shall be chosen according to merit and fitness. 23
Z?The civil service law provisions on classification are not contrary to
the state constitutional statements guaranteeing equal protection of the
law to all persons. 24 That is, it is not invalid to discriminate between
various groups by placing some within the classified service and some
outside, others within the competitive service, and still others in an ex-
empt class. "^
CIn Rogers v. Common Council of Buffalo, 25 the provision that the
civil service commission should not be constituted of more than two
members from one political party was upheld as not violating a constitu-
tional provision that "no member of this state shall be disfranchised or
deprived of any of the rights or privileges secured to any citizen thereof,
unless by the law of the land or judgment of his peers.^ 26 Nor was it
found contrary to the due process clause of the state constitution. The
reasonable basis of such provisions of civil service law is emphasized by
the courts, and it is a general principle of American constitutional law
that classification and discrimination are valid if based upon a reason-
able ground. The right of a person to office is not a right to the office,
but the right to be eligible for the office; and this he is even though a
restriction be placed upon the number of places that shall be available
to the entire group to which he belongs.
The requirement of merit and fitness incorporated in all civil service
laws is not contrary to the common provision of state constitutions for-
bidding the requirement of any "other oath, declaration or test ... as
a qualification for any office of public trust." 27 The historical basis of
these constitutional provisions is to be found in the English experi-
ence with religious tests. Although the present provisions are somewhat
broader than might be suggested by their historical antecedents, the
courts nevertheless tend to restrict them in matters such as these. A test
of fitness is said to be reasonable and therefore constitutional. The privi-
lege of holding an office is not a natural right, said one of the courts. 28
Constitutional protection of privileges and immunities does not ex-
tend to offices, and no property rights are violated by civil service laws. 29
The legislature has the power to create, regulate, and control offices un-
less expressly restricted by the constitution. "It is only every citizen hav-
28 State ex rel. Milwaukee County v. Buech, 171 Wis. 474, 177 N. W. 781 (1920).
94 State ex rel. Milwaukee County v. Buech, supra, note 23.
^Rogers v. Common Council of Buffalo, 123 N. Y. 173, 25 N. E. 274 (1890).
28 N. Y. Const., Art. I, sees, i, 6.
27 Rogers v. Common Council of Buffalo, supra, note 25; People ex rel. Akin v. LoefHer,
175 ni.585, 5i N.E. 785 (1898).
28 State ex rel. Buell v. Frear, supra, note 19.
89 People ex rel. Akin v. Loeffler, 175 111. 585, 51 N. E. 785 (1898).
16 CIVIL SERVICE LAW
ing the proper qualifications for the office who has the right to hold such
office. The mode of determining whether such qualifications exist, as es-
tablished by the civil service act, applies to all citizens alike, and therefore
the rights and privileges of none in that regard are abridged." 30
Civil service acts sometimes contain provisions restricting the freedom
of political activity of civil servants, and on the other hand, forbidding
removal because of political activity. Such restrictions, and intermediate
provisions between the two extremes, are sometimes found in separate
statutes also. They are generally held to be valid, and not to infringe upon
the right of freedom of speech. 31
A jury trial is not necessary to make the procedure whereby one may
be removed from office consistent with the requirements of due process
of law. But when a state constitution requires that grand jury indictment
is necessary for infamous crimes, it is not permissible to penalize viola-
tions of a civil service law by disqualifying an officer or employee for
five years following conviction unless indictment by a grand jury is pro-
vided for, because this punishment makes the crime an infamous one. 32
Several cases have come to the higher courts in which the question
of the conformity of the civil service acts with the provisions on munici-
pal home rule and with special legislation has been raised. In New York,
where municipalities are constitutionally given the power to appoint
their own employees and officers, the question has been complicated by
the fact that the state civil service commission has been given power to
approve rules that are made by the municipal commissions and also to
appoint civil service commissioners for the municipality if the mayor
does not do so. The court has held that the civil service acts of the state
are valid even though they contain these provisions. 88 The power of
appointment resides in the municipality, since the civil service law affects
not the power to appoint but the power to determine qualifications.
Similarly, in New Jersey it has been held that in the absence of express
constitutional limitations it is valid for the state commission to exercise
some powers over the municipal commissions. There is no inherent right
to local home rule, says the New Jersey court. 34 In Illinois it has likewise
been held that when the legislature has power to regulate local govern-
ment, it may prescribe restrictions to be observed in the selection of
municipal employees. 85
80 People ex rel. Akin v. LoefHer, supra, note 29.
"Stowe v. Ryan, supra, note u. See 20 Nat. Munic. Rev. 296 (1931). On political ac-
tivity see Catherwood, Political Activity by Civil Service Employees, 7 111. L. Rev. 160
(1912).
M People ex rel. Akin v. Kipley, supra, note 22.
88 Rogers v. Common Council of Buffalo, supra, note 25.
84 Attorney General v. McGuinness, 78 N. J. L. 346, 75 Atl. 455 (1909).
85 People ex rel. Akin v. Kipley, supra, note 22.
CONSTITUTIONALITY 17
If the constitution expressly extends the merit principle to local sub-
divisions of the state, they are not free to choose whether they wish to
adopt it. In this connection a "civil division" of the state has been held to
include even school districts. 36
The local government may adopt a state law on local civil service
even though the law affects the terms of local officers. The terms of local
officers are subject to local control because they are of local concern. 37
An optional civil service law that was enacted by the state legislature
and that permitted the common council by resolution to accept the act
for the municipality, and thereby make the act effective in that city, was
held to be valid in State v. Peterson, 38 Under the legal theory applicable
in these cases, such an act is a complete statement of legislative policy
and is in effect in the state. An event is designated upon which the act
is to become operative in particular areas; the designation of an action
by the city council as that event is held to be a constitutional method of
making the act conform to the requirements of the separation of powers,
which forbid the legislature to delegate its legislative power to the cities.
But in New Jersey it has been held that although the council may adopt
the act, it is invalid to permit the voters to do so. 39 Such laws, or those
permitting cities to frame their own ordinances on civil service, do not
without any initiative on the part of a city put civil service into operation
therein. 40
Civil service laws are not special laws within the meaning of the
phrase "special legislation" merely because they distinguish between
various offices and employments and between various groups of citizens
on the basis of fitness. To require the applicants for some positions to
state their age, sex, health, habits, etc., and not to require those for other
positions to state these facts is insufficient to constitute an unjust classi-
fication. 41
On the whole, the courts have taken a rather friendly attitude toward
civil service laws and have overruled most of the constitutional objec-
tions advanced against them. Only the more general questions involved
in civil service litigation have been considered in this section. Special
problems connected with particular phases of the substantive law of civil
service are reserved for later discussion. 42
86 Palmer v. Board of Education, supra, note 5.
87 Barnes v. Mayor, 213 Mass, i (1912).
88 State ex rel. Benson v. Peterson, 180 Minn. 366, 230 N. W. 830 (1930).
89 Attorney General v. McGuinness, supra, note 34.
40 Fee v. Fitts, 291 Pac. 889 (Gal. App. 1930).
41 People ex rel. Sellers v. Brady, 262 111. 578, 105 N. E. i (1914). People ex rel. Akin
v. Kiplcy, supra, note 22; Kipley v. Luthardt, 178 111. 525, 53 N. E. 74 (1899).
42 See, for example, the chapters on classification and appointment.
i8 CIVIL SERVICE LAW
II. SCOPE OF CIVIL SERVICE LAWS
L The civil service is closely related in the minds of many persons with
the classified service, and it is not uncommon to find the two terms used
synonymously. Legally the two are not synonymous, for the civil service
may be defined so as to include within its scope an unclassified as well
as a classified division. Also, within the classified service there may be
competitive and noncompetitive services. It is the competitive classified
service that is commonly thought of as the civil serviceQ
The scope of the civil service law, that is to say, the governmental
units, departments, officers, and employees to which it applies, is entirely
a matter of statute or, where the constitution contains any civil service
section, of constitutional provision. Quite commonly associated with the
idea of civil service in the competitive class is that of protection against
arbitrary removal. But, of course, it is possible to have free and sum-
mary discharge of employees and officers, for example, those in custody
of public funds, and still include them in the classified service. 43 In all
cases, the question is one of construction, and usually of construction of
statute.
It should be explained that the term classified service is strictly used
in the national government to designate what is ordinarily and loosely
referred to simply as the civil service that is, the service which is under
the particular jurisdiction of the United States Civil Service Commission.
This commission is not the personnel agency for all the civil service in
the national government, there being other personnel laws, such as those
applicable to the foreign service, that have no apparent relation to the
civil service acts of 1871 and 1883. The civil service customarily referred
to is that governed by the acts of 1871 and 1883 and includes those officers
and employees who have been designated for, or "classified" by the presi-
dent into, the civil service. In other words, the classified service in the
national government is virtually that usually referred to simply as the
civil service.
Of course, Congress itself may except some officers or employees from
the operation of the civil service law of 1883. Whether it has done so is
in each case a matter to be determined by reference to statute. Sometimes
the exception is express and clear, as in the case of deputies to collectors
of internal revenue. 44 When a statute recites that a department head
may "employ temporarily," it has been held that the employment may be
made without reference to the civil service commission. 45 "To be ap-
pointed" signifies no intention to deviate from the civil service act; "to
48 People ex rel. Akin v. Locffler, supra, note 29.
** United States ex rel. Palmer v. Lapp, 244 Fed, 377 (C. C. A. 1917).
46 21 Ops. Atty. Gen. 261 (1895).
SCOPE 19
be selected" may do so, although, as is indicated elsewhere, phrases of
this type are construed by the courts in the light of the surrounding facts,
and the history of the statutory phraseology in the succession of statutes
on the subject is of considerable importance in determining the meaning
that should attach to them. 46
A question that gave rise to some confusion at one time was the status
of the chief examiner of the civil service commission. The empowering
phrase was that the commission should "employ" a chief examiner. Was
he an officer, in view of the dignity of his position and the duties and
powers attached to it? Or was he an employee? If an officer, he might
be appointed by the president and the Senate, by the president alone, by
the head of a department, or by the courts of law, but not by the commis-
sion, since the commission is not generally held to be a department, al-
though for constitutional purposes it might have been held to be one. If
an employee, the examiner might be employed by the commission. Since
the statute failed to specify who should appoint him, the phrase in Ar-
ticle II that leaves to the president and the Senate the appointment of
those officers whose positions are created by law and whose appointment
is not provided for by law made it seem that only the president and
Senate could appoint him. Accordingly, he was not placed within the
classified service. 47
The same attitude that prevails in the national government is found
in the states. For example, a state statute recited that a particular body
could "employ and remove" certain workers. Such a phrase standing
alone does not necessarily mean that the positions affected are withdrawn
from the operation of the civil service law. Other factors are to be con-
sidered in determining whether the phrase has this effect or whether it
is to be assumed that the statutory declarations were made within the
general framework of the civil service law. 48
An authorization in an appropriation act made money available, of
which a specified amount was to be "expended for personal services in
the District of Columbia." In this connection two outside engineers were
needed to give their opinion as to the state of deterioration of a govern-
ment building. Could they be employed without reference to the civil
service act? The comptroller general ruled that they must be drawn from
a list to be submitted by the civil service commission. 49
Civil service acts usually refer to officers and employees, but in addi-
tion to these two classes, most governmental units make use of special
agents and of contractors. In some instances it is not easy to determine
48 25 Ops. Atty. Gen. 341 (1905).
47 1 8 Ops. Atty. Gen. 409 (1886). See 17 Ops. Atty. Gen. 504 (1883),
48 Walsh v. Commissioner of Civil Service, 15 N. E. (id) 218 (Mass. 1938).
49 7 Dec. Comp. Gen. 106 (1927).
20 CIVIL SERVICE LAW
whether a contract is one of employment or is for the performance of
special services to be carried on in a sufficiently independent manner to
constitute the performer an independent contractor. The courts, while
mr.!M:/ii^ the special category, tend to construe the phraseology in
such a manner as to bring the employment rather than the contract into
the foreground, and thus bring the transaction inside the civil service
law. 50 The fact that a city council directs the mayor to enter into a con-
tract which has nothing to distinguish it particularly from the employ-
ments common to the city service is not sufficient to constitute a person
with whom such a contract is made an independent contractor. 51
A statute providing that all "offices and places of employment in such
city" should be within the civil service has been held to include the sub-
ordinates in the office of a city clerk. 52 Difficulty has arisen in connection
with those departments, such as police or fire, in which there is a force of
skilled or professional workers with a head or governing board that is
lay rather than professional in membership. A statute stated that the
police department should consist of the board of police commissioners,
the chief of police, the police force, and such other clerks and employees
as were deemed necessary, but in dealing with the fire department men-
tioned no corresponding boards and officers as constituting the depart-
ment. It was held that such an omission should be taken to mean that
the force of firefighters constituted the department, and that the secre-
tary to the board of fire commissioners was not within the department,
and not being within it, was not subject to the civil service regulations. 53
In the case of a statute providing that those in the "fire force" were to
be under the civil service, it was held that the secretary-treasurer of the
board governing the fire force was not within the force, and was there-
fore not protected by the civil service act. 54
Careless or unskilled draftsmanship sometimes results in problems
of construction for the courts which ought not to be forced upon them.
In one city charter the chief of police was expressly excepted from the
provisions on the civil service. In another section the police department
was defined in such a manner as to include the chief of police, and a
general statement was made to the effect that no member of the depart-
ment should be chosen except in accordance with the provisions govern-
ing the civil service. By virtue of another section the council was em-
powered to effect consolidations of functions. Did the chief come within
the civil service ? The court held that the chief was excepted from the
60 Peck v. Belknap, 130 N. Y. 394 (1892).
51 Peck v. Belknap, supra, note 50.
58 People ex rel. Akin v. Loeffler, supra, note 29.
03 McCarthy v. Board of Fire Commissioners, 37 Cal. App. 495, 174 Pac. 402 (1918).
64 City of New Orleans v. Commissioners, 50 La. Ann. 1000 (1898).
SCOPE 21
civil service provisions because of the rule sometimes applied in the con-
struction of statutes that the specific overrides the general. 55
Civil service laws often use the phrase "departments" or "executive
departments" in defining the branches of the administrative organiza-
tion to which they are intended to apply. The inclusion of any particular
subdivision of the administrative organization under these phrases de-
pends not only upon the civil service statute but also upon other statutes
providing for the general organization of the administrative branch of
government in that particular unit. 56 An institution may be a department
for some purposes and not for others. 57 This is a problem that arises in
all levels of government, in municipalities as well as in the states and
the national government. Calling an officer the head of a department in
order to evade the civil service law does not make him a head if his posi-
tion, duties, and powers do not also make him one. 58
The need for consulting branches of the law that are closely related to
civil service law, though independent of it, is illustrated by Brenan v.
People, 59 an Illinois case. Section 3 of the civil service act provided that
"said commissioners shall classify all the offices and places of employ-
ment in such city, . . ." The question arose, Does the commission have
the power to classify any employees of the board of education who are
not listed in the section on exceptions ? The disintegrated character of the
municipal organization prevailing in many sections of the country is
nowhere illustrated more strikingly than in the relationship between the
board of education and the city government. It is not uncommon for the
board to have independent powers, including even the power to tax, and
it frequently happens that the general municipal government exercises
virtually no control over the school authorities. In each case it is necessary
to consult the special and general laws governing education, not only in
the state but in the localities, the general and special laws governing
the city governments in the state as a whole and in this city in particular,
and also the civil service law. The court said in the Brennan case that
"merely because a board is invested with certain corporate powers it is
not necessarily separated from the municipal government."
In some cases the courts stress the ownership of the property of the
organization, the source of money for defraying its expenses, and the
benefits that accrue to the city from its activities, in deciding whether it
is a part of the municipal service. 60 The mere fact of separate organiza-
86 Marshall v. Williams, 85 Cal. App. 507, 259 Pac. 970 (1926).
56 34 Ops. Atty. Gen. 48 (1924). See 7 Dec. Comp. Gen. 818 (1928); 27 Dec. of Comp.
145 (1920); 4 Dec. Comp. Gen. 53 (1924).
67 27 Dec. of Comp. 145 (1920).
58 People ex rel. Akin v. Kipley, supra, note 22. ro 176 111. 620, 52 N. E. 353 (1898).
60 People ex rel. Ryan v. Civil Service Supervisory and Examining Boards, 17 Abb. N. C.
64 (1885), affirmed, 41 Hun 287, 2 N. Y. St. Rep. 636 (1886),
22 CIVIL SERVICE LAW
tion, with a corporate status and special funds, is not sufficient to make a
library board independent of the city for purposes of the civil service
law. 61 Considerable attention is paid to the power to tax. The fact that
the institution does not possess that authority militates considerably
against independence for civil service purposes. Park districts and various
types of park organizations present a similar problem in some cities.
With all of them the statutory intention governs the answer that is given
to the question of their status. 62
The judicial departments of state, local, and national governments are
outside the civil service laws either by express provision or by virtue of
the clause that excepts elective officers from the operation of the act. The
courts tend to construe civil service acts as not applicable to court attend-
ants of one type or another if they are not expressly included. A civil
service provision applying to "state officers" has been held not to include
court employees. 68 A court interpreter has been said not to fall under a
civil service act because not explicitly included. 64 A statute that extended
the civil service to certain county officers did not apply to a jury clerk in
the sheriff's office, the office of sheriff not being a county office within
the meaning of this term as used in the civil service law. 65 Care must be
taken in framing civil service provisions to make it clear just what types
of employment connected with the judicial process do come under the
classified service. In a California case 66 it was decided that the power to
fix the number of deputies and their compensation did not include the
power to fix the qualifications for office, and therefore did not include
the power to impose the merit system upon them. Deputies may be either
the personal employees of their principal or officers or employees of the
government. This may be true of some other officers as well. The source
of compensation is important in these cases. 67
The civil service laws usually except legislative employees entirely,
or place them in an unclassified service, although there are instances in
which they have been placed in the classified division. This exemption
applies to employees not only of state Icjislaiiu* bodies but usually of
legislative bodies in the counties and cities as well. Legislators them-
selves are excepted under the usual provision exempting elective officers.
61 Newark Library Trustees v. Commission, 86 N. ]. L. 307, 90 Atl. 261 (1914).
82 Wood v. Philadelphia, 59 Pa. Super. Ct. 90 (1915).
08 People v. Morley, 67 Colo. 331, 184 Pac. 386 (1919).
** Cutugno v. New York, 9 N. Y. S. 729 (1890).
65 Matter of Grifenhagen v. Ordway, 218 N. Y. 451, 113 N. E. 516 (1916).
^Crowley v. Freud, 132 Cal. 440, 64 Pac. 696 (1901).
87 Wilson ex rel. Sullivan v. McOsher, 84 N. }. L. 380, 86 Atl, 497 (1913); Devlin v.
McDermott, 84 N. ]. L. 403, 86 Atl. 500 (1913); Bates v. OfTerman, 147 Misc. 800, 264
N.Y. 5.547(1933).
SCOPE 23
This practice of excepting legislative employees leaves them subject to
the political discretion of the employing bodies. 68
Labor may be either included in the classified service on a noncom-
petitive basis, placed in the unclassified service, or left outside the service
entirely, depending upon the statutory provision. Statutes sometimes use
the word "labor," at other times the phrase "unskilled labor," and in still
other instances "laborers and workmen." In any case the problem is one
of determining whether the words apply to all labor, to unskilled labor,
to laborers who do some clerical work, to laborers on an hourly, daily,
weekly, monthly, or annual wage, or to laborers in all branches of gov-
ernmental administration. 69
Some of the constitutional problems that arise from the relationships
between state governments and their local subdivisions have been dis-
cussed in the section on constitutional problems of the civil service. It
has been pointed out that some states have enacted statutes applying the
merit system only to the state administration; others make it possible for
local governments to adopt the laws that have been enacted by the state
legislature; in still other states the state and local governments have civil
service laws in common under a system of state legislation that either
directly covers the municipalities or permits them to enact their own
merit laws. The state governments retain some supervision over the local
services in a few instances.
The power of the state to provide for civil service laws to be followed
in the local governments is clear enough and is subject only to those re-
strictions found in some state constitutions upon state legislation that
relates to local governments. The courts tend to look for pretty clear au-
thorization to any state body that claims the power to enter the local per-
sonnel field; and although they will permit the exercise of the power, they
are not likely to imply it lightly. This is true, for example, of the power
to fix salaries. 70 In the case cited, the court said that "public considerations
of a fundamental character require that if the li vji^.ii in c proposes to take
away this power and intrust this responsibility to a state-wide appointive
supervisory commission, the expression of its will should be couched in
the plainest of terms."
A state law providing that "The authority by this section conferred
shall not be so exercised as to take from any policeman or fireman any
right or benefit conferred by law, or existing under any lawful regula-
tion of the department in which he serves" was held not to take away
88 Matter of Shaughnessy v. Fornes, 73 A. D. 462, 77 N. Y. S. 223 (1902).
69 27 Ops. Atty. Gen. 215 (1909); Ash v. Board of Civil Service Commissioners, 215
la. 908, 247 N. W. 264 (1933); Hoggett v. Mt. Vernon, 36 A. D. 374, 55 N. Y. S. 315
(1899); 27 Ops. Atty. Gen. 184 (1909).
70 D'Aloia v. Civil Service Commission, 101 N. J. L. 427, 128 Atl. 877 (1925).
24 CIVIL SERVICE LAW
from the police board the power to promote a policeman without a pro-
motional examination as required by the civil service law when under
a former local law promotion could be made for meritorious services
without such examination. 71 A general law does not repeal a local law
in this type of situation. In Oklahoma it was held that a charter provi-
sion giving the power to fix qualifications for members of the fire de-
partment and to employ and discharge such members, restrained only
by the laws of the state, was so general that it was not intended to adopt
and incorporate a state law providing for removal only upon good and
sufficient cause. Unfortunately, the court paid its respects to the merit
principle in these terms: "Rodman was informed that it was the policy
of the mayor to allow the chief to select his own men, subject to the ap-
proval of the mayor. It is a policy that appeals to us as wise. A city fire
department is not a charitable institution. It has duties demanding a
discipline and loyalty that are better secured by allowing the chief to
select his own men than by any civil service scheme." 72
Under the optional method, whereby a municipality may adopt a
state civil service law designed for municipalities, it should be remem-
bered that if the statute says nothing about any method for iTpc.ilini:
the adoption, it cannot be thrown of? by later municipal action. 73 Some
courts seem to think of the act of adoption as even having the effect of
estopping the city to question the legality of its act at a later time. 74
Whether any particular officer or group of officers comes under the
civil service law is, of course, a matter of statutory or constitutional con-
struction, but in numerous instances the content of phrases used in both
statute and constitution is to be found only in the common law of offi-
cers as developed in England and in America. One of the :rrsiMiiij:
problems in the American law of officers is that of defining whether a
person is acting as a state or as a local officer; of course, it is elementary
that he may be acting as a state officer in some capacities and as a city
or county officer in other capacities, even though acting under the au-
thority of only one office all the time. 75 In a civil service law case a ques-
tion of this kind can be settled only by resorting to the rules of law that
govern public officers; civil service law as such contains no rules for its
determination. The fact that an officer performs duties in only one lo-
cality does not prove that he is a local officer. He may even receive his
71 People ex rel. Leary v. Knox, 166 N. Y. 444, 60 N. E. 17 (1901).
"City of Wewoka v. Rodman, 172 Okla. 630, 46 P. (ad) 334 (1935).
73 Warren v. New Brunswick, 79 N. J. L. 191, 80 Atl. 482 (1909).
"Newark v. Civil Service Commission, 112 N. J. L. 571, 172 Atl. 589 (1934). See
People ex rel. Qua v. Gaffney, 142 A. D. 122, 126 N. Y. S. 1027 (1911), affirmed, 94 N. E.
1098. Cf. Sweeney v. Selectmen of Natick, 202 Mass. 539, 88 N. E. 917 (1909).
76 Wilcox v. Meahl, 172 A.D. 263, 160 N. Y. S. 708 (1916).
SCOPE 25
compensation from local funds and not be a local officer. He may be
appointed by the governor and be a local officer. He may be appointed
by the governor, serve locally, and be paid locally and still be a state
officer, if he is performing a state function. 76 A statutory recitation that
jury commissioners "shall be officers of the several courts of record of
their respective counties" makes them county and not state officers for
purposes of the civil service provisions in the Colorado constitution. 77
One court stated that whether an officer is a county or state official
depends upon the source from which he receives his compensation and
the authority from which he receives his directions. The use of the word
"county" as a prefix to the word "officer" in a statute does not necessarily
prove that the office is a county office or the holder thereof a county offi-
cer. The substance rather than the form must be considered, and if the
two are inconsistent the substance is to control. The county may be used
only as an administrative district of the state, so that to name the district
in terms of the county does not show conclusively that the officer in-
volved is a county officer. 78 Service in the county may be distinguished
from service in the city for civil service purposes; this distinction like-
wise depends upon the general law of officers. 79
Public health provides an illustration of a function often adminis-
tered, organized, and financed locally, but qualifying as a state function
for certain purposes under the law of officers. The source of the power
to appoint the members of a municipal health board, and the source of
their legal powers and duties, are of importance in deciding whether
they are state officers because the function they perform is of statewide
significance. 80 The unit for whose benefit the service is primarily carried
on may be of considerable importance in cases of this kind. 81
The particular organization that is involved may be significant in
determining whether the employees and officers of a certain division or
institution of any given unit of government are under the civil service.
A clerk in the municipal court of the city of New York may be a city
officer and thus come under municipal rather than state civil service
provisions; 82 at the same time, it is perfectly possible and consistent that
78 People ex rel. v. Higgins, 67 Colo. 441, 184 Pac. 365 (1919); Chambers v. People
ex rel. Storer, 70 Colo. 496, 202 Pac. 1081 (1921).
"People ex rel. Riordan v. Hersey, 69 Colo. 492, 196 Pac. 180 (1921). People ex rel.
Denholm v. Welde, 27 Misc. 697, 59 N. Y. S. 474 (1899).
78 McDaniel v, Moore, 118 S. W. (2d) 272 (Ark. 1938).
"McAffrey v. Howland, 241 A. D. 624, 268 N, Y. S. 664 (1934). See Bonnell v. Phila-
delphia, 48 Pa. Super. Ct. 456 (1912).
80 Civil Service Commission v. Engel, 184 Mich. 269, 150 N. W. 1081 (1915).
81 People ex rel. Ryan v. Civil Service Supervisory and Examining Boards, 17 Abb. N. C.
64 (1885), affirmed, 41 Hun 287, 2 N. Y. St. Rep. 636 (1886).
88 Spencer v. Leary, 137 Misc. 124, 241 N. Y. S. 388 (1930).
26 CIVIL SERVICE LAW
the clerks of the Detroit recorder's court should not be under the city's
control because that court is part of the judicial system of the state gov-
ernment. 83 This difference between states or even within a single state is
due to the laws which establish the court, fix its relationships to the local
and state units, and make it clear whether the court is local or state.
A city civil service does not extend to county officers, even though the
two governments have been consolidated into a single city-county unit,
unless the statutory intention is very clear that the service should extend
to both units. 84 Sometimes the functions that are carried on by several
of the local governmental units are so closely interrelated that it is not
easy to distinguish them. But those who are essentially county officers
and employees come under the rules of the county on civil service and
public officers, and not under the city rules. 85
Thus far the scope of the civil service has been discussed largely in
terms of the groups of officers and employees to which the statute, char-
ter, or constitution refers. But, of course, a civil service provision operates
not only as a restriction upon these groups, but upon the units of gov-
ernment themselves and upon those who exercise their powers for them. 86
Several subjects treated in a rather cursory manner in this section are
also touched upon in the section on classification; in each instance both
sections should be consulted. The confused state of the terminology and
of the law upon these two subjects makes it impossible to draw clearly
defined lines of demarcation between them.
|