A civil service law may extend to officers holding office for fixed terms
and may change tenure to tenure during good behavior. 54 The tradi-
tional view of a civil service law is that its removal provisions are among
its most essential features; therefore, it may seem somewhat strange that
a person holding a position for a definite number of years should be sub-
ject to the merit system. But even though his term is not affected by the
civil service law, it is perfectly possible to apply to him many of the pro-
visions of such a law. Also, the position, once vacant, and if appointive,
may have to be filled in accordance with the merit rules. It may even be
that the removal provisions of the statute will protect the holder if an
attempt is made to remove him before his term expires. There is nothing
inconsistent in holding for a fixed term and being placed within the
classified service for many purposes; nor does the fact of coming under
the civil service law change the term from a definite to an indefinite one.
If the term is not changed by the civil service law, the mere fact that the
position is placed within the classified service, either by statute or by ad-
ministrative regulation under the statute, does not change the term.
The courts sometimes overlook the fact that it is not necessary to elimi-
nate a fixed term in order to place a position or person within the classi-
fied service. 65
If the tenure is indefinite by virtue of a statutory provision, that tenure
is not affected by any existing or past administrative practice of appoint-
ing for definite terms, 56 and the fact that the appointee has accepted an
appointment for a definite term does not change the law governing his
tenure. It remains indefinite even though he and his appointer thought
that it was definite. 57 The question is one of statutory interpretation.
When the appointing officer or body is given authority to fix the term
52 People v. Stong, 67 Colo. 599, 189 Pac. 27 (1920).
88 State ex rel. Brittain v. Board of Agriculture, 95 Oh. St. 276, 116 N. E. 459 (1917).
"Matter of Phillips, 139 A. D. 365, 124 N. Y. S. 60 (1910). See Sullivan v. Mayor and
Aldermen, Logan v. same, 201 Mass. 506, 88 N. E. 9 (1909).
M Hosp v. Civil Service Commission, 83 N. J. L. 10, 84 Atl. 614 (1912).
M Matter of Goold v. Vosburg, 152 Misc. 599, 273 N. Y. S. 918 (1934).
57 Matter of Stowe v. Board of Supervisors, 236 A. D. 212, 259 N. Y. S. 503 (1932),
reversed, 260 N. Y. 662, 184 N. E. 136.
for an office, then the terms recited in the various appointments previ-
ously made are important in deciding on the length of term. 58
The term of a deputy is usually that of the officer for whom he is act-
ing. This rule is applied to questions of the tenure of deputies under civil
service provisions in the absence of statutory provision to the contrary. 59
The problem of holdovers is no different in civil service cases than in the
law of public officers generally. 60
Sometimes tenure is used as a test for determining whether a person
or place comes within the meaning of a civil service act. It was held that
a "merchant appraiser" was not in the national civil service partly be-
cause he was a temporary employee "selected" instead of "appointed" or
"employed" to perform certain duties for the United States. 61
III. EFFECTIVE DATE OF ACT
The date at which the civil service act becomes effective is governed
by the same rules as are other statutes. The statute itself may specify the
time at which it is to take effect. In the national government the statute
provided that it was to take effect "after the expiration of six months from
the passage of this act," the day on which the president signed the statute
to be included. "Where the computation is to be made from an act done,
the day on which the act- is done is to be included" is a general rule of
The most troublesome problem in connection with the time at which
the act becomes effective is due to the fact that civil service statutes pro-
vide a method for testing qualifications of applicants, and that the pro-
cedures and organization necessary for carrying out that method cannot
be established immediately upon the day that the act takes effect. It is
one thing to say that the act becomes effective on January first of a given
year, and quite another thing for the act to become effective in the sense
of having an organization ready to apply its provisions on that day. It
takes days, weeks, and even months to formulate the necessary rules,
to make the classifications and draw up examinations, and to give and
grade the examinations preparatory to sending the names of candidates
to the appointing officer upon his request for a list of eligibles. What are
the appointing officers to do during the interval?
Clearly, not all vacancies that occur during this period can be left un-
B8 Board of Education v. State Board of Education, 115 N. J. L. 67, 178 Atl. 208 (1935).
89 30 Ops. Atty. Gen. i (1913).
^Biddle v. Atlantic City, 91 N. J. L. 679, 103 Atl. 386 (1918). See Browne v. Hagen,
91 N. J. L. 544, 104 Atl. 207 (1918); People v. Chew, supra, note 40.
81 Auffmordt v. Hedden, 137 U. S. 310, n Sup. Ct. Rep. 103, 34 L. ed. 674 (1890).
62 4 Dec. of Comp. 399 (1883). That time of effect depends on statutes, People ex rel.
Wilson v. Knox, 45 A. D. 537, 61 N. Y. S. 472 (1899).
40 CIVIL SERVICE LAW
filled. There are several alternatives which the appointing officer may
follow. In the first place, he may leave the position unfilled. In the sec-
ond place, he may make a temporary appointment to tide over the
period. The civil service acts usually provide for temporary appoint-
ments, and once an act has gone into effect, that provision is also effective.
In the third place, the appointing officer may wish to make the appoint-
ment as he would have done if the act had not gone into effect. Whether
he can do so will depend upon the phraseology of the statute. The courts
are likely to hold against the last alternative if any method can be found
by which he might make the appointment in accordance with the act.
In any event, he must ask the commission whether it is ready to conduct
examination and certify names. 63
It has been held that if a temporary appointment expires but the ap-
pointee stays on, performing the duties attached to the position, he is
entitled to compensation on the same basis as a de facto officer. 64 The
gap in the succession here is due to the fact that permanent appointment
takes effect in the future. The temporary appointment may not, how-
ever, be used to avoid the requirement of an examination when one can
The removal provisions of the civil service act become operative upon
the date at which the act takes effect, and they may be in force even
though the administrative machinery and procedure required by the act
are not yet in operation. 65 This would not be true, of course, if the re-
moval procedure depended upon administrative rules and organization,
because then the removal provisions would have to wait upon adminis-
trative action to become effective. The removal sections of many civil
service acts and of many charters are phrased in such a manner that they
are capable of application much earlier than are the examining, classify-
ing, certifying, and other provisions of those laws.
In cities the civil service may be established by charter, by ordinance,
or by a general state law that either imposes the system upon the cities
or leaves it to their option. Under a general state law providing for op-
tional establishment, the question may arise whether the civil service law
goes into force in a particular city at the time of the enactment of the
law or at the time of its adoption by the municipality. The natural an-
swer to such a question would be that it becomes effective at the time of
its adoption by the city, but the phraseology of some of the statutes has
caused some argument upon this question. Suppose that the general law
provides that no officer or employee "now" in the service of the city shall
be removed except for cause, nor unless in accordance with the provisions
of this act. Does the word "now" mean the time of the enactment of the
statute or the time of its adoption ? It has been held that such a statute
should be interpreted as referring to the time of the adoption of the law
by the city. 66
IV. THE CIVIL SERVICE COMMISSION AND ITS RELATION
TO OTHER DEPARTMENTS
It is usual for civil service laws to provide for civil service commis-
sions or commissionerslHowever, since it takes some time for a person-
nel agency to organize and begin its work, it is important that arrange-
ments be made for the payment of those who are to be employed in the
preliminary work of establishing the system. If a separate staff is not to
be organized immediately, then care should be taken to provide, either
by the civil service law or by some other statute, for transfers from other
departments or for temporary appointees to perform the duties incident
to the preliminary work. 07 In the national government, for example, it
was found necessary to provide by statute for the detail of employees
from other departments to aid the Civil Service Commission before such
detail was permissible; also the detail could not be for duties other than
those prescribed by the statute. 68 The practice of assigning employees
from other departments to aid the civil service agency at one time had
to be subjected to statutory regulation in the national government. 69 It
occasionally happens that existing joffices are entrusted with the new per-
sonnel work, but this is not usual.^3
It is important to make provisions for enforcing the cooperation of
existing administrative departments. Failure to do so may prove em-
barrassing. 71 When an officer is under a legal duty to give information
to the civil service commission in the conduct of its investigations, he is
entitled to the compensation that he would receive on his regular work. 72
The civil service act may provide in detail for the status that the civil
service agency shall have in the governmental organization, or its posi-
tion may be partially left to the courts, to be worked out on the basis of
general laws governing organization. Some civil service laws call the
organization, officers, and employees that make up the administrative
66 Steel v. Board, 89 N. J. L. 609, 99 Atl. 318 (1916).
67 8 Dec. Comp. Gen. 582 (1929).
68 25 Ops. Atty. Gen. 379 (1905). See 20 Ops. Atty. Gen. 750 (1894).
69 25 Ops. Atty. Gen. 382 (1905). See 24 Dec. of Comp. 253 (1917).
70 See Newcomb v. Indianapolis, 141 Ind. 451, 40 N. E. 919 (1895).
71 25 Ops. Atty. Gen. 492 (1905).
7a i8Dec. of Comp. 135 (1911).
42 CIVIL SERVICE LAW
machinery of the civil service the "department of civil service." When
this is done, the status of the organization is a little easier to determine
than when the act merely says that there shall be a commission com-
posed of a fixed number of members with certain powers enumerated
in the act.
In the national government the question has frequently arisen whether
the United States Civil Service Commission is a "department" as that
word is used in the federal statutes. The answer to this question depends
wholly upon statute, and not only the civil service statutes but other or-
ganizational statutes as well. For example, a statute provided that no
officer or employee should represent a claimant in a case against any de-
partment in which he had been working while the claim was pending.
Does this apply to an employee of the United States Civil Service Com-
mission ? The attorney general has ruled that it does not. Examination of
the history of and changes in the exact phraseology of the statutes using
the phrases "department" and "executive department" is typical of the
method that is followed in cases of this type. 73 The phrase "heads of the
executive departments," when used in a statute requiring these officers
to fix a working day of not less than seven hours in their departments,
was held not to apply to the commission. The commission was said not
to be in or under one of the executive departments, but under the presi-
dent directly. 74 The theory of the commission in the national government
is that it is an advisory body, acting as an aid to the exercise of the ap-
pointive function of the president and of his subordinates. 75
Qn the cities it is common to find the personnel agency a regular part
of the city government, whether or not it is expressly classified as such
by the civil service act itself. Its employees usually come within the civil
service, although the commissioners are generally chosen as political offi-
cers. But the fact that they are selected as political officers does not mean
that they are not part of the city government. If the mayor, with the ap-
proval of the council, appoints the commission, if it makes reports to the
city executive, if it is financed by the city, and if in general it is dealt with
by law as one of the city departments, then it is a part of the city govern-
ment. 76 The city is liable for payment of the services of a secretary to the
civil service commission just as for those of any city officer. 77 The mayor
exercises such powers over the commission as the law gives him over the
departments and bureaus of the municipal government, subject of course
to any limitations and restrictions that appear in the civil service or any
78 25 Ops. Atty. Gen. 6 (1903).
7 *22 Ops. Atty. Gen. 62 (1898).
76 20 Ops. Atty. Gen. 557 (1893).
76 People ex rcl. Jacobs v. Chicago, 202 111. App. 105 (1916).
"Kip v. Buffalo, 123 N. Y. 152 (1890).
other law. 78 He may be given the power to remove the commissioners;
in doing so, he is governed by the express provisions of the statute and by
the general rules of the law of public officers. 79 *]
A civil service act does not in and of itself make any changes in the
departmental organization of the administrative branch of the unit of
government to which it applies. 80 The civil service law aflects the selec-
tion, status, and tenure of the officers and employees in those departments
so far as they come within the provisions of the act, but may make
changes in organization only as part of a reorganization plan, not as
part of the merit principle itself. Its powers in this regard are, of course,
a question of statute. 81 .]
Llhe introduction of a civil service system does not alter the powers
of existing officers or boards so far as the ordinary work of administration
is concerned, but it does impose qualifications upon some of those pow-
ers. It is sometimes said that the civil service act changes the power to
appoint, but of course this is not true. The power of a civil service com-
mission is to determine the qualifications of those who are to be certified
for appointment, and the power of appointment is left where the law
placed it before the enactment of the civil service statute. 82 Similarly with
respect to the power to remove, that power being left in the hands of the
officers who possessed it under the prior law, the civil service act only
prescribing procedures to be followed in the exercise of the power. Unless
the act expressly says so, the civil service commission is not vested with
the power of removal. 83 Thus, if a hearing is guaranteed on a removal
proceeding, it is presumed, in the absence of anything in the law to the
contrary, that the hearing will be held by the board or officer having
the power to remove. An administrative act may not give the commission
power to participate in removal proceedings, it being illegal for this
power to be delegated to the commission by any act of the officer pos-
sessing it. 8 *J
A civil service commission usually fixes the necessary qualifications
for any position that is within its il,!ssil\ini power; the types of tests
that are to be used to determine competency are also within the power of
the commission to prescribe. The appointing officer has some discretion
in making appointments by means of which he may indirectly bring
78 Kenton v. Dooley, 137 Misc. 86, 241 N. Y. S. 431 (1930).
79 Allison v. Stevens, 23 Oh. App. 259, 155 N. E. 652 (1925).
^Grota v. Holcombe, 97 S. W. (2
81 People v. Coffin, 282 111. 599, 119 N. E. 54 (1918).
^Dawkins v. Bazer, 16 La. App. 284, 134 So. 119, 238 (1931).
88 26 Ops. Atty. Gen. 260 (1907); Santangelo v. Civil Service Commission, 12 N. J.
Misc. 193, 170 Atl. 86 1 (1934); State ex rel. Nelson v. Board of Public Welfare, 149 Minn.
323, 183 N. W. 521 (1921).
84 Paddock v. Brisbois, 35 Ariz. 214, 276 Pac. 325 (1929).
44 CIVIL SERVICE LAW
some pressure to bear upon a commission, but the final authority in these
matters rests with the civil service commission. 85 An appointing officer
may use his own judgment as to a candidate's past record even though
the commission has certified his name. 80 fA wise commission, of course,
will consult with the affected departments in these matters, but an un-
wise personnel agency is within its legal powers if it adheres to its own
judgment, even though mistaken in its practices. However, a civil service
commission has no power to create or change positions and offices.fjj
As an administrative body, the civil service commission is subject to
the judicial controls common to all administrative bodies which perform
work that is partly informal and partly formal. When the commission
carries on the work of formal hearing in removal cases, it may be subject
to those controls which the courts exercise over all bodies carrying on
that type of work. When carrying on investigative work, it is acting in a
field that is not subject to ordinary judicial controls, except as it violates
those rules that apply to administrative officers generally. Being an ad-
ministrative and not a judicial body, the commission is not subject to
the writ of prohibition as a part of the judicial system. 88
V. POWER OF THE CIVIL SERVICE COMMISSION
TO MAKE REGULATIONS
[The statutes that provide for a civil service system usually authorize
the commission or commissioners to make such rules and regulations as
may be necessary for the enforcement of the act. Usually little attention
is given by the statute to the form of the rules or the procedure to be fol-
lowed in making them. Nor is it usual to find any statement in the statute
concerning the legal effect that such rules and regulations are to be given.
That is left to the general rules of law governing the power to make regu-
The tendency of state legislatures to be more detailed in the adminis-
trative provisions of their statutes than is Congress is illustrated in state
and local civil service laws. The more detailed the statutory provisions,
the less important is the role that administrative regulations play. The
broader and the shorter the statute, the greater will be the place of such
regulations. In the national government the statutes that provide for the
civil service are few and brief. There is no comprehensive national statute
dealing with even all the important phases of national civil service law.
85 Pratt v. Rosenthal, 181 Cal. 158, 183 Pac. 542 (1919).
^Santangelo v. Civil Service Commission, 12 N. J. Misc. 193, 170 Atl. 861 (1934).
87 State ex rel. Mattice v. Seattle, 173 Wash. 42, 21 P. (2d) 288 (1933).
88 People ex rel. Bender v. Milliken, 185 N. Y. 35, 77 N. E. 872 (1906).
The interstices in the law that are filled in by civil service rules promul-
gated by the president (though prepared by the commission), as well as
the gaps filled in by commission rules, are very great. As an example of
this, it may be observed that in the national service the scope of the civil,
or as it is sometimes called, the classified service is almost wholly dealt
with by rules, not by statutes.
The distinction between the state and local laws on the one hand and
the national laws on the other arises partly out of the different positions
that are held in the administrative systems by the president and by the
governors and mayors. 89 The president, with some qualifications as to
the independent establishments under the decision in Rathbun v. United
States, 90 is the administrative head of the national government. He is the
head of a largely integrated administrative system. Most of the state gov-
ernments are not organized in such a manner that there is either any
integration in their organization or any one officer at the head of the
state administration. The governor is not the chief executive of the state
administration in the same sense that the president is the head of the
national administrative system. Constitutional centralization of adminis-
trative power in the president is to be contrasted with constitutional de-
centralization of that power in the states.
The result of this difference in the status and power of the chief ex-
ecutive in the various units of government is that the president has much
greater power in the field of administrative regulations than have most
other American executives. The president has a much greater power of
appointment, and with it a much greater power of removal, than have
governors and mayors; he has also a broader power of administrative
supervision. All of these things, coupled with the dominant political posi-
tion of the president, have resulted in the statutory grant of broader rule-
making power to the president than has been granted to other heads of
The constitutional power of the president to see that the laws are
faithfully executed, when combined with "the executive power" granted
to him in the constitution, provides him with a substantial basis for the
making of rules to regulate the work of the national administration.
Considering that civil service law affects the law of appointment as in-
timately as it does, it was only natural that the national legislation should
have conferred upon the president broad rule-making pbwer in this field.
The national law virtually leaves it to the president to determine who
shall be within and who shall be outside of the civil service, with the ex-
89 See the discussion of the relation of national civil service to the president in Mayers,
The Federal Service (1922), Chapter 3.
90 295 U. S. 602, 55 Sup. Ct. Rep. 869, 79 L. ed. 1611 (1933).
46 CIVIL SERVICE LAW
ception of certain classes mentioned in the basic statutes. 91 The legal
theory of the national civil service is fundamentally that the civil service
commission is to aid the president in the exercise of those preliminaries
that attend upon his appointing power, and upon that of the heads of
departments and other appointing officers, not that it is to impose re-
strictions upon these powers. It is to relieve the president of all the details
that have to be dealt with under the political system of appointment that
the civil service commission exists. 92 The portions of the national civil
service law that deal with removal will be discussed later.
The civil service rules in the national government have no legal effect
in the sense of being enforceable by the courts, because while they may be
regarded as authorized by statute, the statutes give them no legal status
or sanction as law. If the president makes a regulation that employees in
the civil service shall not be removed except for cause, and a department
head removes an employee without cause, the national courts will not
intervene to afford any redress against the action of the removing offi-
cer. 93 The discharged employee cannot obtain an injunction to prevent
adverse administrative action against him, partly because the presidential
rules are not "law" in the same sense that rules authorized by statute and
given a legal sanction are "law" in the courts. 94 He cannot obtain a writ
of mandamus to reinstate him in the position from which he has been
ousted. 95 If, on the other hand, the protection against removal were in-
corporated in a statute, the court could give the discharged person some
remedy against illegal removal probably qualified by the limits on the
power of Congress to restrict the removal authority of the president. 96
It is also possible to get court relief if the removal is governed by admin-
istrative regulations which are within the power granted by statute to
the administrator making the rules, and if the statutes provide for the
sanction against the breach of the regulations thus made. But where the
rule is made under an authority independent of statute, the courts will
not enforce it by the usual remedies in the absence of statutory direction
to do so.
Needless to say, the violation of such presidential rules as are involved
in the civil service field is not a crime, and administrative order is not
91 See Mayers, The Federal Service, Chapter 3. See also Hart, The Ordinance-Making
Power of the President of the United States (1925).
02 United States ex rcl. Palmer v. Lapp, 244 Fed. 377 (C. C. A. Oh. 1917).
93 United States ex rel. Palmer v. Lapp, supra, note 92; Taylor v. Kercheval, 82 Fed.
497 (C. C. Ind. 1897).
04 Fleming v. Stahl, 83 Fed. 940 (C. C. Ark. 1897). Page v. Motfett, 85 Fed. 38 (C. C.
N. J. 1898). Morgan v. Nunn, 84 Fed. 551 (C. C. Tenn. 1898).
95 United States ex rel. Taylor v. Taft, 24 D. C. App. 95 (1904).
96 Fleming v. Stahl, supra, note 94.
sufficient to make that a crime which the statute does not make so. 97
However, the fact that the courts will not enforce presidential rules does
not mean that these rules are without effect as a matter of government.
The president himself, as chief executive, may enforce them by such ad-
ministrative measures of discipline as he thinks fit. They are also used as
the basis of rulings by the attorney general in answer to inquiries from
government officials, 98 and are enforced by the comptroller general in his
rulings on proposed expenditures.
When the president's power to make regulations affecting the civil
service arises out of statute, as it does in some instances, then of course
he is restricted to the power granted him by statute. 09 The president may
not broaden a statute so as to make it cover that which its text or spirit
does not cover, nor may he restrict a statute by rules so as to make it cover
less than it is intended to cover.
It should be pointed out that one advantage of the flexible system of
regulations in the national civil service is that equities may be accom-
plished in particular cases more easily than under a system of rules more
closely approximating a legal system. 100
In some states the regulations of municipal civil service commissions
may be suspended or modified by the state commission, just as they are
made initially subject to the approval of that commission. When this is
true, the state commission must give its approval within the period fixed
by law. For that body to approve the suspension of a subdivision of a
regulation two or three years after the expiration of the statutory period
is to render its approval nugatory. 101
The rules of civil service commissions in the states occupy the same
position in state law as do the rules of administrative officers generally.
As indicated elsewhere, 102 it has been held constitutional to give the civil
service commission power to make rules. But this does not mean that
a different status may be given to a candidate by rule than is accorded
him by statute. 103 Similarly, a definite leave of absence granted by statute
may not by rule be changed to an indefinite leave. 104 But considerable
discretion may be exercised by the commission in making its rules, as is
illustrated by the fact that a rule requiring six months of service in the
97 Johnson v. United States, 26 D. C. App. 128 (1905).
88 30 Ops. Atty. Gen. 512 (1919); 23 Ops. Atty. Gen. 595 (1901); 21 Ops. Atty. Gen.
09 28 Ops. Atty. Gen. 112 (1909); 20 Ops. Atty. Gen. 649 (1893).
100 20 Ops. Atty. Gen. 64 ( 1 89 1 ) ; 20 Ops. Atty. Gen. 274 (1891).
101 Shanahan v. Jenkins, 166 Misc. 433, 2 N. Y. S. (2d) 461 (1938).
102 See Chapter II, p. 14.
108 Mitchell v. McKevitt, 128 Cal. App. 458, 17 P. (2d) 789 (1932).
104 People ex rel. Davie v. Lynch, 164 A. D. 517, 149 N. Y. S. 895 (1914).
48 CIVIL SERVICE LAW
next lower position before the promotional examination can be taken
has been sustained as reasonable. 105
uThe courts will determine for themselves the reasonableness as well
as the legality of rules, but usually the two questions are dealt with as
though they were one and the same question. 106 In this as in other
branches of rule-making law, the courts really inquire into rules under
three heads: Are the rules authorized by statute? Are they constitutional
if authorized by statute? Are they reasonable if made in the exercise of
a discretion that is granted in broad and general statutory terms ? The
latter question becomes in the final analysis a composite of common law
ideas of reasonableness and of contemporary practices in the particular
field being 'lu^iiiv/r.!. in this instance personnel practices. The statutes
seldom specify the procedure to be followed in making civil service law
regulations, and actually they are made in a great variety of ways. It is
not necessary, in the absence of statute, to have them made or promul-
gated formal!]^ 07
Rules must be properly pleaded before the court will take notice of
them, 108 and the action in which they are tested must be an appropriate
action. 109 No adequate method of reviewing rules that are made by civil
service commissions exists in American law so far as the courts are con-
cerned. It is not possible without express statutory authorization, and in
some courts it is not possible except with the aid of constitutional amend-
ment, to have rules passed upon by judicial bodies in the manner that
the judicial section of the council of state passes upon administrative rules
in the French system. The common law system of remedies evolved
out of a system in which injury already inflicted became the basis of re-
lief; and the idea that a judge cannot pass upon the validity of a statute
without having it first applied to some person to see whether it injures is
due to this historical background of Anglo-American procedure. The
situation is contributed to by the fact that the law does not afford satis-
factory methods of checking an officer when he illegally exceeds his
statutory authority. The power to make a given rule is one thing and
the question whether the rule has been applied in a manner permitted by
the law is quite another thing, but the Anglo-American courts have been
unable to distinguish between them because of the inability of the judges
of our day to make procedural innovations which their predecessors
would not have hesitated to make if the need for them had existed four
hundred years ago as it does today.