There were no circumstances attendant upon the adoption of the organic act for the island of Porto Rico, such as existed at the adoption of the canal amendment in the State of New York. The civil-service act of the United States had been in full operation for many years when the organic act of Porto Rico was adopted. It had been frequently enforced by the courts and had become an integral part of the administration of the Government. To suppose that the Congress of the United States, which was annually making appropriations for the administration of this system, should have intended to pass an organic law for the island of Porto Rico which would deprive the legislature of that island of the power of establishing such a system seems to us absurd.

The other cases cited by the attorney general are People v. Mosher (163 N. Y., 32) and Menges v. City of Albany (56 N. Y., 374). The former of these cases held that it was unconstitutional to require the head of a department to appoint the person standing highest on the eligible list, because that prevented him from exercising any discretion. But, on the other hand, the court expressly said, page 43:

"This court in effect held that the statute of 1883 and the rules adopted by the civil-service commissioners under it, which required that the officers to be appointed should be selected from the highest three on the eligible list, was valid." Citing People v. Roberts (148 N. Y., 360); Chittenden v. Wurster (152 N. Y., 345 (358)).

The Menges case was that of an attempt by the legislature to compel the selection of a lot by jury in proceedings for the condemnation of land. This was unconstitutional because in violation of the special provisions of the Constitution in reference to condemnation proceedings. It has no bearing upon the question now under consideration.

The opinion of Judge Peckham, who afterwards became a Justice of the United States Supreme Court, which is reported in Rogers v. City of Buffalo (123 N. Y., 173), is especially enlightening. It points out very clearly the causes which led to the adoption of the civil-service law by the United States and by the State of New York, and shows that the system of appointment which prevailed before the adoption of these laws was "subversive of every right principle upon which the business of the public ought to be conducted," and again, "That the former system was bad, very bad indeed, was a fact regarding which it is almost impossible to dispute. All intelligent, unprejudiced and disinterested opinion runs most strongly in that direction It is somewhat difficult to imagine a worse than the old system of appointments to civil office."

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In a number of other States in which civil-service laws are in force, their constitutionality has been upheld by the courts in like manner. The most important of these decisions are: People ex rel. Aiken v. Kipley (171 Ill., 44). Opinion of the Justices (138 Mass., 601).

We can not forbear from expressing our opinion that it is in the highest degree undesirable that one public officer, except in the very clearest case, should undertake to overrule the deliberate action of the legislature. The organic law of Porto Rico does not make the attorney general of that State a coordinate branch of the legislature. His office is created for the purpose of enforcing the laws, not to seek to subvert these laws by a refusal to execute them.

The true rule on this subject is well stated by the Court of Appeals of New York in People v. Supervisors of Orange (17 N. Y., 241):

"Before proceeding to annul by judicial sentence what has been enacted by the law-making power, it should clearly appear that the act can not be supported by any reasonable intendment or allowable presumptions."

This view of the subject is confirmed by an opinion of the Attorney General of the United States. That officer (who certainly is the official superior of the attorney general of Porto Rico) in construing a provision of an act of Congress declaring that " persons employed under this appropriation shall be selected by" the head of the department concerned, used the following language:

"Congress may, of course, at any time it deems proper, exempt any position or any class of positions from the operation of the act, but to do this it must use language indicating clearly and affirmatively its intention that civil-service rules should not be applied." ( Opin. Attorney General, 26-507.)

The organic act relied upon by the Attorney General provides that the officers named shall have the power "to employ" all necessary deputies and assistants. This language is rather less direct than the language in the Federal Constitution, for an officer may have the discretion whether or not to employ a

man whom another shall select. There is no direct power to make the appointment. Certainly no power to select the appointee.

This may be interpreting the language very strictly, but it is perfectly certain that this language does not place the appointing power beyond the power of the legislature half as clearly as the Constitution of the United States and of the various States puts the President and other appointing officers. LAW COMMITTEE, National Civil Service Reform League.

METHODS OF CERTIFICATION AND APPOINTMENT.

The following statement shows in a general way how certifications and appointments are made in the various parts of the classified service.

A. BY CERTIFICATION FROM THE COMMISSION'S OFFICE.

1. All positions in the apportioned service at Washington. (See paragraph at end of this list.)

2. All positions in the departments proper at Washington which are excepted from the apportionment under Rule VII, section 2.

3. All positions in the Government Printing Office.

4. The position of railway mail clerk.

5. All positions in the Isthmian Canal Service.

6. All positions of physician, civil and electrical engineer, law clerk, telegrapher, draftsman with exceptions noted hereafter, and chemist in the Customs Service.

7. The position of superintendent of construction in the Treasury Department and in the various branches of the War Department.

8. The positions of examiner of surveys, surveyor, irrigation engineer, hydrographer, assistant geologist, law examiner, law clerk, and similar positions in the Interior Department.

9. The position of guard in the Department of Justice.

10. The positions of aid, cadet engineer, cadet officer and superintendent, Lighthouse Service.

11. The positions of aid, computer, chief marine engineer and mate, Coast and Geodetic Survey.

12. The positions of local and assistant inspectors of hulls and boilers, Steamboat-Inspection Service.

13. The positions of fish culturist and scientific assistant, Bureau of Fisheries. 14. The position of deputy shipping commissioner and clerk, Bureau of Navigation.

15. The positions of Chinese and immigrant inspectors, mounted inspector and interpreter, Immigration Service.

16. The positions of veterinary inspector and meat inspector, Bureau of Animal Industry.

17. The position of observer, Weather Bureau.

18. The position of bookkeeper except in the Engineer Department at Large. 19. All positions in the Indian Service except stenographer and typewriter, clerical and subclerical, and noneducational positions in the Indian Irrigation and Allotment Service.

20. All scientific, technical, or other positions requiring unusual qualifications in the Department of Agriculture and similar positions in other branches of the service.

Owing to the great number and variety of positions for which examinations have been held in the past it is impracticable to mention all positions. The current registers maintained in the office of the commission number 372.

B. CERTIFICATION AND APPOINTMENT UNDER THE DISTRICT SYSTEM.

1. Positions in classified post offices, customs districts, internal-revenue districts, Subtreasury Service, Mint and Assay Service, and Custodian Service. 2. The positions of stenographer, typewriter, and stenographer and typewriter in all field branches of the service.

3. The position of office deputy United States marshal.

4. The position of messenger boy in Weather Bureau stations, navy yards, and other field branches of the service.

5. The position of forest clerk in the Forest Service.

6. The positions of mechanical draftsman and apprentice draftsman in the Ordnance Department at Large.

7. The positions of mechanical-apprentice draftsman, copyist draftsman, and bookkeeper in the Engineer Department at Large.

8. Clerical, minor clerical, and subclerical positions in navy yards, pension agencies, Indian Service, Engineer Department at Large, Ordnance Department at Large, Quartermaster's Department at Large, Immigration, Lighthouse, Steamboat Inspection, Weather Bureau, Bureau of Animal Industry, and Marine Hospital Establishments, and other field branches of the service.

9. Mechanical trades and similar positions in the Quartermaster's Department at Large, Ordnance Department at Large, and Engineer Department at Large. Such positions in the field service of the Bureau of Fisheries and in the Life-Saving Service have been filled from district registers.

The Ordnance and Engineer Departments at Large of the War Department are not altogether under the district system, as there are local boards which maintain registers of eligibles, but the district secretaries are members of the boards and assist in rating papers.

C. CERTIFICATION AND APPOINTMENT THROUGH LOCAL BOARDS.

(Noneducational positions.)

In the District of Columbia:

1. Government Hospital for the Insane.

2. Freedmen's Hospital.

Outside the District of Columbia (but including local offices of these branches of the service in the District of Columbia):

1. Life-Saving Service.

2. Public Health and Marine-Hospital Service.

3. Engineer Department at Large.

4. Ordnance Department at Large.

5. Reclamation Service (including field clerks).

6. Indian, Irrigation, and Allotment Service.

MERIT SYSTEM IN STATES AND CITIES.

In its Twenty-seventh Report, page 161, the commission printed a list of States and municipalities, counties, and villages which had adopted in whole or in part the competitive system in appointments to positions in the public service. It was shown to apply to 217 cities, 6 States, 20 counties, and 7 villages, or 250 political divisions in all. Since the publication of that report the principles of the merit system have continued to find increasing acceptance. Not only has the merit principle tended to spread to new fields, but its scope has been broadened to cover new positions, including those of an administrative nature. Existing laws have been strengthened by added safeguards.

In New Jersey the merit system received popular approval in the vote taken in the November election for the adoption of the State civil-service law by the counties of Hudson and Mercer, the cities of Jersey City and Trenton, and the village of South Orange. The victory in these cases is significant, for the submission of the question to popular vote, which was accomplished by the referendum, was vigorously opposed. The State law, where adopted by cities, apparently has worked satisfactorily, for the city of Newark decided to drop from its draft of a proposed new charter provisions for a local commission, thus showing its desire to continue under the State law.

In the interests of election reform the State legislature enacted a law providing for the appointment of election-officers through a system of noncompetitive examinations.

In Massachusetts 32 cities voted on the proposition of extending the merit system to the position of chief of police, 20 adopting and 12 rejecting the proposed extension. The city of Pueblo, Colo., at a special election held on September 19, by an overwhelming vote, adopted a new charter providing for the commission form of government, and containing civil-service provisions affecting higher officers, such as chiefs of fire and police departments, judges of municipal courts and registrars of election, the city comptroller and judges of the municipal court to be appointed by vote of the commission. In Macon, Ga.,

the city council recently put the police and fire departments under the merit system.

The State of Illinois passed an admirable set of civil-service laws which effect an important extension of the merit principle and are regarded as marking the end of the spoils system in that State. The former State law, which applied only to charitable institutions, is now extended to all the executive departments of the State government, adding from 1,400 to 1,600 positions to the classified service. Another of the new laws extends the merit system to the entire service in Cook County, and in any other county when its population reaches 150,000. In the city of Chicago employees of the parks have been included, while important changes in both the State and county laws, which have been conflicting and ineffective in several respects, have been made, particularly in the provisions for grading of positions, efficiency records, and promotions. The powers of the State commission are extended to the investigation of charges against any employee and the investigation of the efficiency of employees, the methods of administration, and the nature, tenure, and compensation of all offices in the civil service of the State, and it is empowered to act as a supervisory board in questions of administrative method. In many jurisdictions where the constitutionality of the civil-service laws has been attacked their validity has been supported. An instance of this is in Wisconsin, the supreme court of which in an elaborate opinion, upheld the constitutionality of the State law. An abstract of this decision is published in this report at page 128.

An amendment to the charter of Detroit, adopted by a large majority in the fall election in 1910, was held unconstitutional by the courts because the law did not allow piecemeal amendment of charters. A civil-service ordinance was then passed by the city council, but was vetoed by the mayor on the ground that the merit system could be established only by a charter amendment, and on the ground that the measure was unfair because covering into the classified service all present incumbents. The council then voted unanimously to submit the question to the voters at the next election through a new charter amendment, the home-rule act having been amended in the meantime to permit piecemeal charter amendments.

In California an amendment to the State constitution applies the merit system to the city and county of San Francisco. Such a provision was contained in the charter of San Francisco when it was originally adopted, but the supreme court held it void because of a lack of power to effect its purpose by charter legislation. As a result of the amendment, however, the county service may be brought under the civil-service law. Another constitutional amendment provided that the four years' term of office provision of the constitution shall not apply to officers or employees appointed or employed under civil-service laws, which will permit the enactment of a State-wide civil-service law. A bill has been drafted to accomplish that purpose, which also applies the system to all counties and such cities as may adopt it.

Charters establishing the commission form of government permit the inauguration of the merit system in the service of Modesto, Monterey, and Vallejo, while that of Oakland makes the system mandatory. Oklahoma City and Bartlesville, Okla., also have civil-service provisions in their commission government charters, and the new charter for Chattanooga has provisions for the merit system.

The commission government charter for Port Arthur, Tex., empowers the city council or commission to establish civil-service regulations, though not providing for a separate civil service commission.

In West Virginia the charter of Bluefield empowers the city commission to act as a civil service commission; the charter of Huntington requires the city commission to establish the merit system in the police and fire departments, and in the office of the cemetery sexton, the city commission or council to act as the civil service commission; and the charter of Parkersburg places the police and fire departments under the merit system.

Plans for the adoption of the merit system are included in the draft of a new charter for Grand Rapids, which includes under the merit system higher officers, such as fire marshal, police chief, health officer, etc.

The draft of a new charter for St. Paul also contains merit provisions, and the adoption of a merit system for the city service of Minneapolis has been recommended by the mayor. A law was passed in Connecticut providing for the adoption of the merit system by popular vote in any political division of

the State. This does not apply to the State service. No cities have yet voted on the question, although the City Council of Meriden has appointed a committee to consider referring the question to the people at the next general election. The governor in his recent annual message recommended a law applying to the State service.

A bill has been introduced into the Legislature of Ohio for the application of the merit system to the entire State service.

The effect of the merit system in bringing about efficiency and economy in public administration has been demonstrated wherever it has been given a fair test. A marked instance of this occurred in Los Angeles, where the construction of an aqueduct 140 miles long, to cost $125,000,000, was first put into the hands of engineers selected in the usual way. An inquiry showed great waste and extravagance, and subsequently the selection of the engineers and other employees on the work was made in accordance with the civil-service rules. It is now stated that the work is one of the most successfully managed in the world, and that the aqueduct will be built for far less money than it would have cost under the old system. In Chicago the supervision of administrative methods and efficiency in the city service, as well as original appointment and separation, has been given to the civil service commission. The commission under this authority has secured important results, leading to greater departmental efficiency and better organization on the one hand and greater individual efficiency and fairness to employees on the other. Duplication of work has been largely abolished, bureaus and workshops consolidated, and the public work placed upon such a basis that the city is assured of efficiency in the personnel.

Kansas City, Mo., offers a striking example of the efficiency and economy which the merit system can produce, the business of all departments of the city government having been increased, with an actual saving in operating expenses. The official records show that the license inspector's office from November 1, 1910, to August 1, 1911, under the new system collected $239,627, and during the same months of the preceding year $178,379, an increase of $61,248, with the same number of men.

In the closing days of the old system, under which the city auditor was chosen by popular vote without any legal requirements as to his special fitness, came the disclosure of a shortage in the tax-bill fund of $13,000, which had been accumulating for years under different administrations. A shortage of $60,000 also had occurred in the treasurer's office without the knowledge of the auditor's office. The new charter provides that the auditor shall be a certified accountant. From April 17, 1910, when the merit system began in this department under a public accountant, to August 31, 1911, the expenses were about half what they had been during any similar period in previous years. The assurance of permanent positions at good wages, with nothing to fear from political changes, drew to the office accountants and bookkeepers from banks and business houses.

In a similar manner the merit system has increased the efficiency of all departments of the city government.

In Wisconsin the position of financial agent of the State University, at a salary of $5,000, charged with great responsibilities, has been placed in the classified service and made subject to noncompetitive examination. In New York City the chief of the fire department was appointed upon a competitive promotion examination, producing admittedly the most competent executive fireman in the country. The president of the New York City civil service commission said of this examination that it showed that " 'practically any public office that does not involve the creation of and responsibility for administrative policies may be satisfactorily filled by intelligent and just competition." In Illinois the position of secretary and chief examiner of the State commission has been satisfactorily filled through competitive examination.

THE APPORTIONMENT.

It should be observed that the statute does not require the apportionment of any appointments except

(a) Appointments made after its enactment.

(b) In the classified service at Washington, D. C.

(c) As nearly as the conditions of good administration will warrant.

At the time of the passage of the civil-service act there were 332 Representatives in Congress, and the commission followed their apportionment as a guide