Frank Johnson Goodnow.

Comparative administrative law: an analysis of the administrative ..., Volume 1 online

. (page 30 of 51)
Online LibraryFrank Johnson GoodnowComparative administrative law: an analysis of the administrative ..., Volume 1 → online text (page 30 of 51)
Font size
QR-code for this ebook


II., sec. 5 ; Railway Mail Rule II., sec. 5.

» See F. P. Powers on the " Reform of the Federal Service " in the Pol. Sci m
Qm. t III., 278.



Digitized by



Googk



QUALIFICATIONS FOR OFFICE. 39

superiors. It is believed that this harmony will result
from a uniformity in political opinions as well as from
purely personal reasons. The total number of those in
the u classified services " is said to be about 43,000. 1

Both New York and Massachusetts have followed
the example set by the national government and have
classified their services, both the central service and
the service of the cities, for the purpose of providing
tests for the ascertainment of the intellectual capacity
of the candidates for office. They have further fol-
lowed in the main the same principles in exempting
the Senate appointments and laborers, with the one
exception that Massachusetts has provided a means of
forming a register of persons desiring positions as
laborers, from which the appointing officers are to
select laborers when wanted. It is reported very re-
cently that such a registration of laborers has been
adopted by the United States navy department for the
navy yards. The classification in both commonwealths
had on account of the greater heterogeneity of the
services to be made on quite a different plan. 2

For the purpose of attending to the examinations
which the law intended to establish and generally of
enforcing the provisions of the civil-service acts there
has been established both in the national and the com-
monwealth service a commission of a non-partisan
character to be appointed by the chief executive with
the consent of the Senate or council and generally re-
movable by him alone. 8 Under this commission is a
chief examiner whose duty is, under the direction of

1 9th Rep. of the Civ.-Serv. Com., 97.
* For the details see the various reports of the commissions.
' U. S. Stats, at Large, vol. 22, c. 27, p. 403 ; N. Y. L. 1883, c. 354;
Mass. L. 1884, c. 320. The Massachusetts law requires the assent of the
I for the removal as well as for the appointment.



Digitized by



Googk



4 o THE LA W OF OFFICERS.

the commission, to secure uniformity and justice in th&
action of the various examining boards. These exam-
ining boards are to be designated from among officers
in the public service, after consultation with the heads
of departments, by the civil-service commission. They
may hold their examinations at the capital or else-
where. Any fraud on their part or on the part of any
person in the public service in conducting the examina-
tions is to be punished. The composition and the
duties of these boards are defined in the regulations of
the commissions; and the commission will consider
complaints as to the unfairness of any board and will
revise the marking or grading and will order a new
examination if it thinks best. 1

In the cities in New York there are special commis-
sions whose composition varies considerably as they
are formed in accordance with the rules which the
mayors of the cities have the right, subject to the ap-
proval of the commonwealth commission, to issue.*
This power of approving the municipal rules is about
the only power of control which the central commis-
sion has over the municipal service. The Massa-
chusetts law differs from the New York law in that it
puts the control of the municipal as well as that of the
commonwealth service into the hands of the common-
wealth commission. 8

The examinations, to conduct which is the chief pur-
pose of the formation of these commissions, are either
pass or competitive examinations. The former, i. e. the
pass examinations, are sometimes called standard or
non-competitive examinations. They were introduced

1 U. S. Reg. VI. ; N. Y. Reg. 15 ; Mass. Reg. 13.
* N. Y. L. 1884, c. 410, sec 2. ■ Mass. L. 1884, c. 320, sec 2.



Digitized by



Googk



QUALIFICATIONS FOR OFFICE. 41

into the national administrative service in 1853 but
have now for the most part been replaced by the com-
petitive examinations. Pass examinations occur for
positions under the civil-service rules only in excep-
tional, cases. Such cases are where there has been a
failure of competent persons to attend and be examined
and where the subjects in which the examinations are
to be held are of a technical character or require pecul-
iar information and skill. 1 We find such pass exami-
nations in the patent office, the state department, the
pension office, the signal office, and the geological sur-
vey.* In addition to the places which fall under the
operation of the general civil-service rules we find pass
examinations held also in other branches of the service,
where they have been provided by executive or depart-
mental regulations, e. g. in the revenue marine service
and in the United States hospital service. 8

In the New York service these pass examinations
occur more frequently than in the United States
national or even in the Massachusetts service. The
reason of the greater frequency was that in the opinions
of the heads of the departments the competitive exam-
inations were unsuited for many of the positions, viz.,
expert positions 4 and the lower grades of employees. 5
Thus in the case of expert positions the appointing
officer is allowed a wide discretion. He may, first,
select from three persons marked highest as the
result of a competitive examination ; or second, he may
name to the commission three or more persons for

1 See U. S. Gen. Rule III. which makes some other less important
exceptions to the rale of competitive examinations, in order to facilitate
the transaction of business in the departments.

* See 7th Rep. U. S. Civ.-Serv. Com., 87. 4 N. Y. Schedule C.

' See CoaMtock, op. cit., 578 and 583. * N. Y. Schedule D.



Digitized by



Googk



42 THE LAW OF OFFICERS.

competitive examination ; and appoint the one graded
highest in such examination ; or third, he may appoint
any person who upon a pass examination shall be duly
certified to him by the commission as qualified for the
duties of the position. This third method, i. e. the
pass examination pure and simple, is always used for
the lower grades of employees. 1

The competitive examinations may be either open or
limited. In the national service the competitive exami-
nations are in nearly all cases open examinations, i. e.
open to all comers otherwise duly qualified, and in
general are written examinations. In the national ser-
vice further these open competitive examinations are
either limited or general in scope and are called copyist
examinations or clerk examinations, the former admit-
ting the applicants only to the lower grades of the
service. 8 The subjects upon which the copyist exami-
nations are held are orthography, penmanship, arith-
metic. The clerk examinations are on the additional
subjects of book-keeping, accounts, elements of the
English language, letter writing, elements of the
geography, history, and government of the United
States. In addition to the copyist and clerk examina-
tions there are what are called supplementary exami-
nations which are held for places requiring certain
technical, professional, or scientific knowledge or ac-
quaintance with some other language than English*
The character of the open competitive examinations in
the commonwealth service is similar to that of the
national open competitive examinations. 4 In New York

1 N. Y. Schedule D. See N. Y. Rules 25-28.

* United Sutet Departmental Rule II.

' See 7th Rep. of the U. S. Civ.-Serv. Com., 39, 231.

4 See 6th Rep. of the N. Y. Civ.-Serv. Com., 464.



Digitized by



Googk



QUALIFICATIONS FOR OFFICE. 43

in addition to the open competitive examinations there
are also limited competitive examinations, i. e. limited
to those persons who may be designated by the head
of a department wishing to make the appointment. 1
But for most of the clerical service under the rules *
the examinations are open competitive examinations.

Both the national and commonwealth civil-service
laws provide that the examinations shall be practical
in character and, as far as may be, shall relate to
matters which will fairly test the relative fitness and
capacity of the persons examined to discharge the
duties of that branch of the service into which they
wish to enter. On account of this provision it will be
seen that in many cases the applicant will have to
state in advance the branch of the service into which
he wishes to enter, and that an examination which, if
passed satisfactorily, will open entrance into one branch
of the service, will not open to him entrance into
another. This is essentially true of the New York ser-
vice which is of an extremely heterogeneous character. 8

All applicants who pass satisfactorily the open com-
petitive examinations (seventy per cent, in both the
national and New York service, sixty-five, in the Massa-
chusetts service, in all cases an exception being made
for honorably discharged sailors and soldiers of the
United States 4 ) are placed on an eligible list on which
they may remain a year, and when a proper vacancy
occurs, the commission certifies to the appointing officer
a given number, viz., three, standing highest on the

1 Sec supra, II., p. 41. * N. Y. Schedule B.

' See 6th Rep. of the N. Y. Civ.-Serv. Com., 464 et seq.

4 U. S. Dep. Rule VI., 2 and 3 ; Customs Rule III., 3 and 4 ; Postal Rule
III., 3 and 4 ; Railway Mail Rule III., 3 and 4 ; Indian Rule III., 5 ; N. Y.
Rule, x 5 ; Mass. Rule xxviii.



Digitized by



Googk



44 THE LAW OF OFFICERS.

list, and from these the appointing officer makes his
choice. In both the national and the commonwealth
service, honorably discharged sailors and soldiers of the
United States are to be preferred, in some cases even
to those standing higher than they, if they have been
able to obtain the required minimum mark. The ap-
pointing officer has not been confined in his choice to
"the candidate standing highest on the list, because it
was feared that this might be regarded as an unconsti-
tutional limitation of his discretion. The United
States attorney-general has held that it is not uncon-
stitutional to confine the choice of the appointing
to the four standing highest on the list of eligibility. 1
No person, it may be added, may in most cases be
certified more than three times to the same appointing
officer, except at the request of the appointing officer.
This provision was adopted to prevent the commissions
from forcing upon an appointing officer any person who
was personally objectionable to him. The appoint-
ment is not yet, however, a complete one. All that
the applicant has shown is a certain amount of theo-
retical knowledge. He is now put upon his probation,
as it is called, and only at the end of the term of pro-
bation, and then only if he has shown practical apti-
tude for the place, is he given a permanent appointment.
The term of probation is six months in the United
States and Massachusetts, and three months in New
York.

What has been outlined is the strict system which
the laws and the rules as a whole aim to enforce. But
it is to be noticed that the rules contain detailed pro-
visions which allow the appointing officers in certain

1 Opinions Attorneys-General, XIIL, 516.



Digitized by LjOOQLC



QUALIFICATIONS FOR OFFICE. 45

eases a greater discretion than would appear from this
genera] outline. These provisions, while permitting
dispensing with the rules in certain cases, are, how-
ever, intended to be framed so as to prevent such a
use of the discretion given as to destroy the effect of
the open competitive examination system. A further
qualification provided for by section 9 of the United
States civil-service law is that where two or more
members of the same family are in the public service
in the grades covered by the act, no other member of
the same family shall be eligible for appointment to
any of the said grades.

It will be noticed that in almost all cases where the
American law has attempted to secure mental capacity
in the positions which are to be filled by appointment,
it has done so by means of a competitive examination
and a term of probation. Only in a few cases, as in
position of medical reviewer in the pension office, 1
where professional knowledge is necessary, is a regular
training and course of study required. The result is
necessarily that those persons run the best chance for
preliminary appointment to most of the positions for
which qualifications of capacity are required, who can
" cram " the best. The disadvantage of such a method,
it is attempted to overcome by providing that the
examinations shall be of a practical character, and
shall relate to the work of the office to which the ap-
pointment is sought; that entrance to the lower
positions alone shall be obtained in this way, and
finally that after the passing of the examination and
the preliminary appointment, the applicant for appoint-
ment, or " probationer " as he is called, shall not be

1 Comstock, op, cit., 587.



Digitized by



Googk



46 THE LA W OF OFFICERS.

considered as having a permanent appointment until
he shall have proved by actual practice that he is fitted
to discharge the duties of the position he desires to
"fill. The term of probation is, however, comparatively
short, particularly in the New York service. With a
term of probation so short the examinations are the
most important test; and these evince theoretical
rather than practical aptitude. It is on this account
probably that those who have been advocating the
civil-service-reform movement, as this method of filling
the positions in the administrative service is popularly
-designated, have not attempted to extend the system
beyond the lowest grades of positions. It is well
that they have taken this position, for it is very doubt-
ful if an examination is a proper method of showing
capacity for places whose duties are at all discretionary
in character.

Z/7. — Qualifications for office in France.

1. General qioalificati&ns, — The qualifications neces-
sary for appointment to office in Prance are fixed for
the most part by executive decrees and departmental
regulations but not often by law except in the case of
some of the general qualifications. These general
qualifications are citizenship, which is usually required
for all appointive offices; a certain age which is so
fixed as to ensure the entrance of candidates into the
service at an early age and gradual rise by promotion
to the higher grades of the service ; and good charac-
ter. This qualification is somewhat the same as that
provided by the United States civil-service rules but
a little more stringent. 1

1 See Penal Code, arts. 34, 35 ; Block, DUtumnaire % etc., 974.



Digitized by



Googk



QUALIFICATIONS FOR OFFICE. 47

2. Qualifications of capacity. — In the purely tech-
nical and professional branches of the service the
qualifications consist in passing successfully through
the schools established by the government for the pur-
pose of educating men for these branches of the ser-
vice. Thus engineers must be educated at the school*
of bridges and roads, mining engineers at the school
of mines, etc., etc. 1 In most of the ordinary adminis-
trative services, however, great reliance is placed upon
the passage of open competitive examinations. But
much greater reliance is placed than in the United
States on the possession by the candidate for office of
a good general education which is evidenced by cer-
tain diplomas or certificates. The diplomas most com-
monly required are those of bachelor of letters and
science, while for those positions which require a
knowledge of the law the diploma of licentiate in law
(about equal to the usual degree of bachelor of laws
in the United States) is necessary and in some cases
the highest degree in law, viz., that of doctor, is re-
quired. It is to be remembered that the degrees of
licentiate and doctor of laws are given only to those
persons who have had a good secondary education.
The degree of bachelor of letters is required for posi-
tions in the central administration of the treasury, in
the department of foreign affairs and the diplomatic
and consular service, and in the departments of war and
agriculture. The degree of licentiate in law is neces-
sary to obtain the position of chief of bureau in the
department of justice and in the general inspection of
the finances and for certain positions in the diplomatic
and consular services. Where such diplomas are re-

1 Block, lot. at.



Digitized by



Googk



48 THE LAW OF OFFICERS,

quired they must be submitted for examination at the
time of application for entrance into the service when
the competitive examinations supervene. All the ex-
animations are conducted by officers in the depart-
ments into which entrance is sought and are under the
supervision of the heads of the departments. There ia
no civil-service or examining commission. Similar ex-
aminations are held for entrance into the services of
the localities. 1 Finally the French place much greater
reliance than does the system in the United States
upon the term of probation. The length of the term
is much greater usually thail in the United States,
often being as long as two years, and its length often
depends on the number of vacancies and the merit of
the probationer. The candidate in many cases is not
given any salary during the term and often has to prove
to the satisfaction of the administration he has sufficient
means to support himself during his novitiate.*

What has been said refers alone to the subordinate
positions of the service. The higher positions which,
as in the United States are regarded as in the main
political, are not subject to any qualifications of capa-
city. 8 The appointing power has absolute discretion
in the filling of these positions.

IV. — Qualifications far office in Gertnany.

1. General qtuxUfioations. — Among the general qual-
ifications for offices filled by appointment in Germany
are citizenship, which, however, is in many cases ob-
tained by the appointment 4 ; good character, generally

1 For the details as to the French system see Mltenl-Larrey, Let Emplcis
Publics, 8 et seq., 15 and 83.
1 Mete'rie-Larrey, op. cit. passim. 8 Block, Dicticnnaire, 975, sec. 23.

4 De Grais, Verfassung und VerwaUung, etc., 1883, 6q.



Digitized by



Googk



QUALIFICATIONS FOR OFFICE, 49

more stringent than in the United States l ; age, which
varies for the different branches ; and fulfilment of
military service or proof that the candidate is physi-
cally unfit for military service.

2. Qtbolifications of capacity. — The qualifications of
capacity differ in accordance with the two great divi-
sions of the service, known as the higher and the sub-
altern service.* The higher service in Prussia, upon
whose system the imperial system is based so that the
Prussian system may be taken as a type, embraces five
classes of officers, beginning with the under secretaries
of state and ending with the position of inspector. 8
For the purpose of determining the qualifications
necessary for appointment to the service the higher
service may be divided into the general higher service
and the special or technical higher service, the last of
which is composed of officers such as mining engineers,
etc., etc. The general higher service includes such
positions as that of under secretary of state, heads of
bureaus, provincial governors, " government presidents "
and councillors, and the professional members of the
important administrative authorities and courts. 4 The
purpose of the required qualifications for entrance into
the higher service is to bring into the service at an
early age men who possess wide general culture and
special knowledge of legal and political science. In
detail the provisions are as follows : In the first place
a good secondary education must have been had, then

1 Loening, Deutsche* Verwaltungsrecht, 120 ; Von Rflnne, Staatsrecht der
Preus rise hen M on arc hie, 4th Ed., III., 146, note 4, referring to certain instruc-
tions issued to appointing officers in Prussia in 1817, and providing that no persons
4>f known bad character shall be appointed to positions in the service.

' Von Ronne, op. cit. % sec. 256.

* De Grais, op. eit. % 74. 4 See supra, I., pp. 304, 307.

VOfc.ll— 4



Digitized by



Googk



50 THE LAW OF OFFICERS.

a course of three years' study of law at some university^
half of which must have been at a German university*
Proof of such study must be submitted to one of the
higher courts which proceeds through a commission to
examine the candidate. The examination is both oral
and in writing, and is upon the private and the public
law, legal history, and the principles of political
science. The candidate must also write an original
dissertation on some legal subject, the general character
of which he may select. He is allowed six weeks in.
which to do this work and must prove to the satis-
faction of the examiners that the work is his own.
The examination is held after the dissertation has been
accepted ; and if the candidate is unsuccessful he will
be given another opportunity to try after the expira-
tion of six months, but if he is a second time unsuccess-
ful he is forever shut out of the higher service. For
the successful candidate the passage of the examination
marks the beginning of the period of practical training.
For he is at once assigned to work with some one of
the higher courts. If a candidate for the judicial
service, he works here for four years, if a candidate for
the higher administrative service, he works for two
years with the court and is then assigned to work for
another two years with some administrative authority.
During his connection with these authorities the law
requires the presiding officer to devote his personal
attention to the instruction of the referendarius, as the
candidate is called, expressly forbids such presiding
officers from making use of the referendarii simply to
aid him in his labors, and requires that the work that
is assigned to them shall be such as will best fit them for
their future work. The presiding officer must keep a



Digitized by



Googk



Q UALIFICA TIONS FOR OFFICE, 5*

record of the conduct of the referendarii under his:
charge. At the end of this long period of probation
the candidate, if his work has been satisfactory, is to
present himself for the final examination which is
known as the great state examination and which is
conducted by the " Examining Commission for Higher
Administrative Officers." This sits at Berlin and is
under the direction of the state ministry. The examina-
tion is both oral and in writing and is on the law in
force in Prussia, especially the constitutional and ad-
ministrative law, and on political economy and the
science of finance ; and like all the examinations in the
Prussian system is a pass examination. The referenda*
riu8 who passes successfully the great state examination
is then appointed to be governmental assessor, is as-
signed to some salaried position in the higher adminis-
trative service, and is eligible to the highest positions
in the service. The only great differences between the
qualifications required for the general service and those
required for the special services, such e. g. as positions
in the forest or mines administration, are that the
examinations for these latter services are upon rather
more technical subjects, that university study is not so
commonly required, and that the period of practical
training required is a longer one. 1

The subaltern service is divided into the subaltern
service proper and the subordinate service. The former
embraces those positions, such as the higher clerkships,
whose duties require the exercise of a certain amount,
of legal knowledge and the exercise of a certain
amount of discretion, while the purely subordinate
service includes simply the purely mechanical positions,,

1 For the details see Von Ronne, op. cit., III., 432-451.



Digitized by



Googk



S* THE LAW OF OFFICERS,

such as copyists, porters, and the like; Provision is
made by law for the filling of most of the positions in
the subordinate service with persons who are provided
with military certificates. These are given to soldiers
and sailors who have been invalided, or have served
for twelve years in the army as non-commissioned
officers. In fact the purely mechanical positions are
reserved exclusively for such persons. Further one



Online LibraryFrank Johnson GoodnowComparative administrative law: an analysis of the administrative ..., Volume 1 → online text (page 30 of 51)