although service is without compensation, no one has ever declined an invitation to serve on the committee nor on any of its subcommittees. To place the National Advisory Committee for Aeronautics under the administrative control of any one of the executive departments concerned, and to abolish the committee as such, would jeopardize its effective work as a coordinating agency for aeronautical research. The natural tendency would be to serve first the needs of the department which had administrative jurisdiction, to the possible neglect of the needs of the other departments, which, in time, might be forced by circumstances to conduct their own aeronautical research, and thus bring about the duplication which the President and the Congress desire to avoid.

The CHAIRMAN. Doctor, may I ask you this, do not the departments, particularly the Army and Navy, engage in some experimental research in aeronautics?

Dr. BRIGGS. Yes, sir; in the field of engineering development. The CHAIRMAN. Why should not that be done by your organization instead of being done in the various departments?

Dr. BRIGGS. The engineering requirements of various services are not the same. For example, the airplane designed for military purposes, in pulling out of dives and in other maneuvering is subjected to very high stresses, and this introduces special problems which are not met with in commercial aviation, where the airplane is not stressed to such a great extent.

A bomber presents a lot of design problems regarding the location of guns, bomb sights, and bomb racks which are peculiar to that type of airplane.

Similarly, the Navy Department has problems in connection with landing on carriers and on water and the design of floats and hulls for seaplanes that are not encountered in the Army.

The CHAIRMAN. Then we have got to have a separate experimental service in both the Army and Navy?

Dr. BRIGGS. For special problems peculiar to these services it is considered desirable.

The CHAIRMAN. I never knew of a service that did not think it desirable to have its own organization do everything. I want to know whether you agree that your Committee could not perform that function.

Dr. BRIGGS. I think, sir, that it would be a mistake to say to the Army or the Navy: "You will not be allowed to carry out any investigations in connection with these planes which you have to fly." That would seem to me, sir, to be going too far.

I wish to emphasize again that the Army and the Navy depend upon the Advisory Committee to carry out basic research, which is necessary and applicable to all of the services. The Committee has not gone into the field of the individual design requirements of the military and naval services.

The CHAIRMAN. Does the Bureau of Air Commerce have to have an experimental service too?

Dr. BRIGGS. So far the Bureau of Air Commerce has not had an experimental service. I think that in the last appropriation bill there was a small appropriation made by Congress for special investigations.

The CHAIRMAN. I recall that, and I wonder if the Army must have an experimental service, as well as the Navy, and the Bureau of Air Commerce, and if they have to have those services I wonder what service your organization is going to perform. You think that essential anyway, do you?

Dr. BRIGGS. The Committee's work is fundamental to all these departments, sir, because on the results of its research the engineering developments are later based. Our work is basic research, and as such it is not only useful, it is necessary for the development of all the other services.

The CHAIRMAN. All right, sir; thank you very much.
The Civil Service Commission, Mr. Mitchell.

STATEMENT OF HARRY B. MITCHELL, PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION

The CHAIRMAN. Mr. Mitchell, under date of July 2, 1937, you wrote a letter to Senator Robinson, with the comments of the Commission on S. 2700, did you?

Mr. MITCHELL. Yes, sir.

The CHAIRMAN. I desire to place that in the record. (The letter referred to is as follows:)

Hon. JOE T. ROBINSON,

UNITED STATES CIVIL SERVICE COMMISSION,
Washington, D. C., July 2, 1937.

Chairman, Senate Select Committee on Government Organization,

Washington, D. C.

MY DEAR MR. CHAIRMAN: The Commission has the honor to advise you, in response to your letter of June 24, 1937, that careful study and consideration have been given to S. 2700, and comment is limited to the material submitted below concerning the sections of the bill noted. The purpose of the Commission is to point out apparent inconsistencies in the bill in order that if desired the committee may arrange for clarification.

TITLE II. CIVIL SERVICE AND CLASSIFICATION

Sections 203 and 204 raise many difficult questions of interpretation.

The meaning of the phrase "by the President alone" is important because subsection (a) of section 203 deals only with that class of appointments and does not apply to positions now or hereafter subject to the appointing power of the head of a department or independent establishment. The legal construction of this phrase is that the President has the authority to make the appointments referred to without confirmation by the Senate.

Section 202 (a) directs the Civil Service Administrator to prepare and recommend to the President "plans for the development and maintenance of a career service in the Federal Government", whereas it is possible to construe provisions in sections 203 and 204 as prohibiting certain, if not all, positions of "head of any bureau, division, service, or other similar agency which is in or under the jurisdiction or control of and is directly responsible to the head of an executive department, independent establishment, or independent agency" from being placed in the classified civil service by Executive order.

Subsection (a) of section 203 is limited to consideration of offices or positions in any agency of the Government to which appointment is authorized to be made by the President alone, whereas in subsection (b) of section 203 the authority granted is broader because it includes bureau heads and policy-determining positions of the same type, and not restricted to those to which appointments may be made by the President alone. This fact is the basis for the statement previously made that it is possible to construe these provisions as withdrawing from the possibility of a career service not only the type of positions referred to in the agencies now subject to appointments by the President alone (such as Resettlement Administration, Works Progress Administration, etc.), but also such positions in the departments and independent establishments of the Government a considerable

number of which are now in the classified service and would appear to be withdrawn from such service by operation of this bill.

It is understood that among the older established bureaus of the Department of Agriculture, only the Weather Bureau is subject to appointment by the President by and with the advice and consent of the Senate, all other Bureau heads being in the classified civil service.

It is to be noted that the words "directly responsible" in clause (2) of section 203 (a) permit the head of any agency referred to in the section to change by mere administrative action the status of an office or position of head of any Bureau, Division, Service, or other similar agency from a classified civil service status to an excepted status by changing the line of responsibility of the office or position to run directly to the "head of an executive department, independent establishment, or independent agency", instead of through any intermediate officer.

The opening clause of section 204 provides for the covering into the classified civil service upon the expiration of 1 year after the enactment of the act of "all offices and positions in the various agencies of the Government" except those enumerated in the six items listed in the section. The words "classified civil service" are defined by the act of March 27, 1922, and this definition does not include positions in schedules A and B of the Civil Service Rules. However, the terms of section 204 are such as to cover into the classified service all such positions which are now in schedules A and B as private secretary, executive assistants to the heads of departments, attorneys, etc., etc.

The use of the words "all offices and positions in the various agencies of the Government" necessarily include those which are now in the classified civil service; and it would appear to be unnecessary to state that these positions which are already in the classified civil service "shall be covered into the classified civil service,

* *

Clause or item (4) of section 204 is confusing because the first "which" refers back to "offices and positions" and "heads of which" likewise, but "heads of which offices and positions" has no meaning. Further, if the appointments are to be made as provided in section 203 (b) (1) by Presidential appointment and senatorial confirmation, it should not make any difference whether they are or are not "subject to the civil-service laws on the date of the enactment of this act." Another question raised by clause or item (4) of section 204 relates to the status of subordinate employees. If in this clause (4) the words "heads of which" are intended to mean heads of which "agencies" as defined in section 5 of title I, it would appear from the proviso to section 204 that for 1 year from the date of the enactment of S. 2700 the President could not issue an executive order under the provisions of section 207 bringing into the classified civil service subordinate positions in such agencies as the Federal Home Loan Bank Board, the Federal Housing Administration, the National Archives, and other similar agencies which are not now subject to the civil-service laws.

Clause or item (5) of section 204 prevents the automatic inclusion with the classified civil service of any positions which on the date of the enactment of the act are required to be filled by the President by and with the advice and consent of the Senate; and this, coupled with the proviso to clause or item (6) of this section would prevent the President from declaring that any of these positions are not policy-determining in character. It is to be noted, however, that in section 401 (b) of title IV specific direction is made that only the Secretary and Undersecretary of Welfare are to be appointed by the President by and with the advice and consent of the Senate, whereas the two Assistant Secretaries of Welfare and the Solicitor are to be appointed by the Secretary of Welfare. This would appear to imply that the positions of Assistant Secretary and of Solicitor generally are not in the class of positions that the President may decide are policy-determining and therefore not subject to the merit system. This appears to be inconsistent with other provisions of S. 2700.

In the same connection another inconsistency appears in section 405 (a) relating to the National Resources Planning Board wherein the Board is authorized to appoint a director "without regard to the civil service laws, * * ""

*

Ît will be clear from the foregoing that, as originally stated, there are many difficult questions of administration involved in the present wording of sections 203 and 204 of S. 2700.

Section 207 appears to be controlled and restricted by sections 203 and 204, and therefore does not give to the President the full authority that the section purports to give him.

Subsection (b) of section 207 contains a provision not heretofore appearing in the civil-service system, namely, that "confidential relationship" may be regarded as a sufficient basis for an Executive order to except any position or office from

the classified civil service. There is a confidential relationship existing in practically every position in the Government service.

Unless the personnel provisions of S. 2700 are susceptible to assured construction, it is believed that subsection (c) of section 207 does not contain the authority it purports to contain.

Under section 208 (a) a question of legislative drafting is concerned for the reason that, as the subsection reads, it appears to grant to the President authority to extend the Classification Act of 1923, as amended, only to the offices and positions which are in any agency of the Government which agency is not at the time subject to such provisions; whereas it is presumed that it is intended to give to the President authority to extend the provisions of such act to any office or position not now subject thereto. There are many departments and independent establishments subject to the Classification Act whose field services are not now subject thereto. To assure the proper construction of the section the words "in any agency of the Government" beginning line 12 of page 16, should be eliminated.

TITLE IV. DEPARTMENTS OF WELFARE AND CONSERVATION AND NATIONAL RESOURCES PLANNING BOARD

The Commission's comment with respect to this title is made under section 204. (See p. 3.)

The foregoing comment is submitted to aid the committee in preparing the final draft of the bill, with a view to clarifying apparent inconsistencies in the present provisions of S. 2700.

By direction of the Commission:
Very respectfully,

HARRY B. MITCHELL, President.

The CHAIRMAN. Have you any further comment that you would like to make about this measure to the committee?

Mr. MITCHELL. I am rather hesitant about commenting because my personal views are not in accord with those of the President on one proposal covered in this bill, and, naturally, I hesitate to express my own views under these conditions.

I agree with the purpose of the bill so far as it extends the competitive civil-service system. I do not agree that an administrator can manage the business of the Civil Service Commission as well as a bipartisan commission of three persons. My principal reason for that objection is that I believe it will eventually have the effect of making the Commission more political. No matter how good a man may be appointed by the President then in office, I feel quite sure that if there is a political turnover the President of the opposition party would insist upon a change, and in the past we have had Presidents who were not enthusiastically in favor of the competitive system, and under him there might be appointed a man who would allow politics to have a part in the business of the Commission. It is inconceivable to me that under any system set up in our political life in America that the party in power would permit somebody that has been appointed by the opposition to handle the personnel matters of the Government.

An organization that has the handling of the personnel affairs of the Government has an entirely different sort of job than the organization that is handling finances or material resources. In the work of the Commission, the welfare of over half a million individuals is involved. When these individuals have individual ideas, and Senators and Congressmen are called upon to represent them, they must take the individual into account.

So far as the actual problem of administration is concerned, I will agree that a single administrator might do better than a commission. The Commission's duties are sort of quas-judicial and also sort of quasi-legislative. There are a great many things the Commission has to do that cannot be governed by set rules and regulations. They pass

upon policies that affect the welfare and lives of individuals, and I do not believe that the decision of one person would ever inspire the confidence that the decisions of a bi-partisan commission do.

It is now composed, as you know, of not more than two members of one party, and unless there is someone of the opposition party to watch out for lapses or evasions of the civil-service law, I would sincerely fear that the law might be evaded and such a situation would inevitably be a blow to the whole competitive system.

I am not only expressing my own views, but also the views of others on the Commission who have had experience.

Senator TOWNSEND. You are president of the Civil Service Commission?

Mr. MITCHELL. I am president of the Civil Service Commission. Senator TOWNSEND. How long have you been a member?

Mr. MITCHELL. A little over 4 years. I might say I am one of the Democrats appointed by the present administration. It has always been the policy of the past administrations to have a majority in accord with the party in power, but the party in power under the present setup cannot do anything political if there is a member of the other party who is on the job. Fortunately, we have had that condition while I have been a member of the Commission.

The CHAIRMAN. The majority controls?

Mr. MITCHELL. The majority controls, but the minority member knows what is going on. I might say in that connection that while the present Commission has been in charge there never has been a difference between the Republican member and Democratic members, so far as a question of policy is concerned. We have been unanimous

on all questions. We differ on individual cases that come before us, but not on policy questions.

The CHAIRMAN. What would you have done if that were not true? Mr. MITCHELL. Well, I presume the majority would have ruled. The CHAIRMAN. You mean if you were the administrator you would have done what you did not do because there was a Republican member?

Mr. MITCHELL. You are asking me personally?

The CHAIRMAN. Yes.

Mr. MITCHELL. I would not have done anything that I have not done.

The CHAIRMAN. You assume that somebody else would not be patriotic?

Mr. MITCHELL. I am stating, Senator, that in the past that condition has arisen, as I understood it. I am not talking about what is happening now. I am merely speaking from hearsay.

The CHAIRMAN. It is just hearsay?

Mr. MITCHELL. Yes; I am merely speaking from hearsay. I just understood that; I do not know.

The CHAIRMAN. As a matter of fact, most of the regulations are: formed, and examinations are conducted by people who have been in the Commission for years?

Mr. MITCHELL. Not the regulations, no.

The CHAIRMAN. They are not drawn up by the commissioners?
Mr. MITCHELL. No; the regulations are approved. Most of them:

are drawn up by the officials.

Senator TOWNSEND. Who is this Republican member?