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Attorney General first, with respect to the legality of the appointment in question ; and second, with respect to the practice of the Post Office Department of requesting recommendations from congressional advisers.

The Attorney General found that the appointment of the postmaster in question was legal, since the request for congressional recommendations is authorized by section 10 of the Civil Service Act of 1883, as amended (5 U. S. C., sec. 642), and further, since there was no evidence that the Postmaster General was aware of the motives of the Congressman, prior to making the appointment.

Concerning the legality of the practice, generally, the Attorney General stated (381–2):

“I also note your request for my opinion as to the legality of the procedure wl:ich the Post Office Department has long followed in respect to the appointment of fourth-class postmasters. Your letter and the accompanying exhibits indicate that such practice consists of requesting the Civil Service Commission to certify the names of three persons eligible for appointment, as provided by the Civil Service Act and rules; and of thereafter notifying the Members of the House of Representatives in whose district the post office is located of the names of persons so certified and reqnesting him to submit any representations he cares to make regarding the character or residence of the eligibles.

“Section 10 of the Civil Service Act (U. S. C. title 5, sec. 642) provides as follows:

" "That no recommendation of any person who shall apply for office or place under the provisions of this act which may be given by any Senator or Member of the House of Representatives, except as to the character or residence of the applicant, shall be received or considered by any person concerned in making any examination or appointment under this act'. [Emphasis supplied.]

"In view of the fact that it appears that in offering to Members of the House of Representatives an opportunity to make suggestions in reference to the selection of the person to be selected for appointment out of the three persons certified by the Civil Service Commission, you expressly request the Members to limit themselves to submitting representations regarding the character or residence of the eligibles, your practice does not violate the provisions of the Civil Service Act, but on the contrary is within its explicit provisions."

HISTORICAL DEVELOPMENTS IN THE APPOINTMENT OF POSTMASTERS

Summary of developments

The Continental Congress, in 1775, established a post office and made Benjamin Franklin, Postmaster General, "with power to appoint such and so many deputies, as to him may seem proper and necessary.” Under the Articles of Confederation, in 1781, the Congress again provided for a post office and a Postmaster General with “full power and authority to appoint a clerk, or assistant to himself, and such and so many deputy postmasters as he shall think proper." The first Congress under the Constitution, directed, in 1789 “That there shall be appointed a Postmaster General; his powers and salary, and the compensation to the assistant or clerk and deputies which he may appoint, * * * shall be the same as they last were under the resolutions and ordinances of the late Congress” (act of September 22, 1789, 1 Stat. 70).

From 1789 to 1836—the first 47 years of the life of the Republic-all postmasters were appointed by the Postmaster General without designated term, and were subject to removal by him. Until 1863, they were known as deputy postmasters.

Following an intensive investigation by two Senate committees, during 1834 and 1835, into alleged graft and corruption in the Post Office, in particular, and into executive patronage, in general, the Congress passed H. R. 215, Twentyfourth Congress, which became the act of July 2, 1836 (5 Stat. 80, 87). This act was the first statutory authority for the Presidential appointment of postmasters, with Senate confirmation, and grew out of the recommendations of the two committee as well as a general feeling in Congress that Senate confirmation was the only way in which graft, corruption, and abuses could be controlled or eliminated. The act provided that all postmasters at post offices at which annual commissions allowed amounted to $1,000 or more, as of a given date, were to be appointed by the President, by and with the advice and consent of the Senate, for a term of 4 years, unless sooner removed by the President.

In 1863, the Postmaster General was empowered to appoint all postmasters whose compensation was less than $1,000; in 1864, five classes of post offices were established; and in 1872, provision was made for the appointment and removal

by the Postmaster General of all postmasters of the fourth and fifth classes, all others being continued as Presidential appointees. In 1874, postmasters were divided into four classes according to compensation. The Postmaster General was authorized to appoint fourth-class postmasters; all others were continued as Presidential appointees. The act of July 12, 1876 (19 Stat. 80, 81), continued this method of appointing postmasters, which is the law today, except that the act of June 25, 1938, eliminated the 4-year term for first-, second-, and thirdclass postmasters and provided for the appointment of all postmasters under civil service rules and regulations. (See appendix A for history and background of Senate confirmation of postmasters.)

SUMMARY

Reorganization Plan No. 2 of 1952 would have the sole effect of changing the method of appointing postmasters of the first three classes by transferring their appointment from the President, subject to Senate confirmation, to the Postmaster General under civil service. Although plan No. 2 of 1952 purports to abolish existing offices of postmaster at post offices of the first three classes and to establish a new office entitled “Postmaster," it does not appear that any actual reorganization in either the structure or functions of the Department will occur.

In view of this, and the expression of opinion by the President, the Director of the Bureau of the Budget, the Postmaster General and former President Herbert Hoover, in connection with earlier reorganizations in the Post Office, to the effect that the transfer of appointment sought to be accomplished, required substantive legislation and could not be done by a reorganization plan, serious doubt is raised with respect to the legality of plan No. 2 of 1952.

ELI E. NOBLEMAN,

Professional Staff Member. Approved :

WALTER L. REYNOLDS, Staff Director.

APPENDIX A

HISTORY AND BACKGROUND OF SENATE CONFIRMATION OF POSTMASTERS

The original drive in Congress for Presidential appointment of postmasters, with Senate confirmation, appears to have arisen out of a fear that a Postmaster General, who could appoint whom he wished, without any control or approval of the Senate, had a dangerous and extensive patronage power.

The first move to attain some control over this power by requiring Senate participation, appears to have been made when Congressman Jared Ingersoll of Pennsylvania submitted a resolution, on January 7, 1814, calling for an "Inquiry into the expediency of revising the laws regulating the General Post Office Establishment of the United States, and of so amending them as to render them more conformable than they are at present to the principles of the Constitution, as regards appointments to office under that establishment.” Speaking on the floor of the House of Representatives, in support of his resolution and on the general subject of patronage, he said :

It has always been an objection urged by many respectable individuals against the Constitution of the United States from the time of its adoption down to this moment, that the Executive Chief Magistrate is entrenched behind too formidable a barrier of patronage and influence. Yet that officer can hardly make an appointment without submitting the nomination to an ordeal in the Senate; an ordeal well known to be of the most trying kind—for very recently it would occur to everybody that, after being tested in the senatorial crucible, some distinguished individuals not answering the assay, had been rejected as found wanting and thrown back upon the President. The War Department cannot make an officer * * * without the intervention of the Senate. Nor can the Navy Department. * * *

"If then, sir, neither the President nor any one of the Executive Secretaries enjoys such a field of irresponsible patronage, I submit it to every man attached to the principles of the Constitution, to consider whether the head of the General Post Office should be allowed, without control, without appeal, without question, to command the services of a band of agents consisting, unless I am incorrectly informed, of not less than 3,000 individuals, distributed throughout the territories of this extensive continent. * * * This patronage extends not merely to the uncontrolled appointment of inferior deputies. He has moreover within his

gift places which, in that particular unfortunately too seductive, that is, in point of emolument, are better worth having than any one of the honorable stations occupied by the Secretaries immediately about the person, and in the Cabinet of the Executive.

“While therefore I disown any view to implicate the General Post Office in culpability at present, I cannot help apprehending that other masters at other times may come, when honorable Senators or other elevated men may be diverted, perverted possibly from their duties, by hopes allowed to be entertained that a postmaster may be prevailed on to translate them from their public places to others of less dignity but more emolument. It does appear to me that unless some remedy be applied to this evil, and that without delay, we are in danger of a new order of Jesuits, in this country, with an unlimited General at their head, to dictate his orders, and enforce them, under all the pains and penalties of removal from their deputations. All that I require is, that the Post Office Establishment should be put on the footing of all the other departments of the General Government: that this should be done as soon as possible, and that an effectual remedy should be applied to this great and dangerous evil. * * *" (Annals, 13th ('ong., vol. 1, pp. 864–866. [Emphasis supplied.)

Although the House adopted his resolution by a vote of 73 to 53 and referred it to the appropriate committee, no further action was taken on the resolution. On March 8, 1814, Congressman Ingersoll introduced a bill providing that all postmasters at distributing offices and in all incorporated cities be appointed by the President and the Senate, upon which no action was ever taken.

Several times within the 15 years following 1814, the suggestion was made that postmasters should be Presidential appointees. In 1816, John Quincy Adams recorded in his diary a joint report of Monroe and Crawford, made in a Cabinet meeting, suggesting that all postmasters whose commissions amounted to $2,000 a year or over should be appointed by the President, with the consent of the Senate (Adams, Memoirs, Philadelphia, 1874–77, vol. 5, p. 482). On May 1, 1822, a similar proposal was voted down in the House of Representatives (Annals, 17th Cong., vol. 1, p. 1774).

On May 4, 1826, a Select Senate Committee on Executive Patronage, headed by Senator Benton, of Missouri, tiled a report, decrying the evils of executive patronage and recommending, among other things, that postmasters be appointed by the President, by and with the advice and consent of the Senate. A draft bill, entitled "A bill to regulate the appointment of Postmasters," was submitted with the report, and subsequently introduced. After extensive debate and a second reading, it was tabled. (Congressional Debates, 19th Cong., vol. 2, pt. 2, p. 133).

On March 29, 1834, the Senate adopted a resolution directing that an inquiry into the condition of the Post Office Department be made by the Committee on Post Office and Post Roads. This committee filed an interim report on June 9, 1834, in which they reviewed the evidence which had been developed to date, and reported that:

"On the whole, your committee have found the affairs of this Department in a state of utter derangement, resulting, as it is believed, from the uncontrolled discretion exercised by its officers over its contracts and its funds; and their habitual evasion, and, in some instances, their total disregard of the laws which have been provided for their restraint * * *” (S. Doc. No. 422, 23d Cong., 1st sess., p. 31).

On June 25, 1834, the Senate adopted another resolution calling for a further investigation of the affairs of the Post Office. This committee submitted an extensive and carefully documented report, on January 27, 1835, calling for far-reaching reforms in the organization and operations of the Post Office. The report stated that:

“So numerous and so great are the abuses which have grown up in this Department, that reform has become absolutely necessary; * * * many of the evils which require a remedy do not arise from defects in existing law, but from an habitual disregard of plain legal provisions. They may, however, be principally traced to the absolute and unchecked power which a single individual holds over the resources and disbursements, and all the vast machinery of this Department. The checks of various inferior officers upon each other are of no value, when they are all guided and controlled in their acts by one dominant will * * *" (S. Doc. No. 86, 230 Cong., 2d sess., pp. 88, 89).

After a further discussion of the abuses and disorders uncovered, the committee stated that:

"* * * They deem it * * * their duty at this time to propose such measures of legislation as will, in their opinion, the most effectually prevent the

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recurrence in future of abuses similar to those which the present investigation bad disclosed. This they conceive can best be effected by a change in the organization of the Department, so as to place the collection and the disbursement of its funde in different bands, and under control of officers entirely independent of each other. That Department, as at present arranged, is a dangerous anomals in our system, and by wbornsoerer its concerns are bereafter to be conducted, its organization onght to be changed so as to conform more pearly to that of the other great department of our Government * * *** (S. Doc. No. 86, op. cit., p. 89),

In order to remedy the various abuses found, the committee, on January 27, 1837), reported s. 128, Twenty-third Congress, entitled "A bill to change the organization of the General Post Office." Section 9 provided for the appointment of postmasters by the President, by and with the adrice and consent of the Senate, for a term of 4 years, unless sooner removed by the President.

On February 9, 1835, Senator Calhoun of South Carolina, chairman of a new Select Committee on Executive Patronage, filed a report analyzing and reriewing the various abuses which it had found. Referring to the post office, the committee reported:

*But the great and alarming strider which patronage has made * * * has demonstrated the necessity of impussing * * * limitations on the discretionary powers of the Executive; particularly in reference to the General Post Office and the public funds, on which impurtant subject the Executive has an almost unlimited discretion as things now are.

"In a government like ours, liable to dangers so imminent from the excess and abuse of patronage, it would keem extraordinary that a department of such vaxt powers, with an annual income and expenditure so great, and with a host of persons in its service, extending and ramifying itself to the remotest point, and into every neighborhood of the Union, and having a control orer the correspondence and intercourse of the whole community, should be permitted to remain so long without efficient checks or responsibility, under the almost unlimited control of the Executive. Such a power, wielded by a single will, is sufficient of itself, when made an instrument of ambition, to contaminate the community, and t« control to a great extent, public opinion. To guard against this danger, and to impose effectual restrictions on Executive patronage, acting through this important department. your committee are of the opinion that an entire reorganization of the department is required; * * *" (S. Doc. No. 108, 23d (ong., 2d ex., pp. 22, 23).

With respect to recommending specific action, the committee reported that its labor, in respect to the post office, “has been superseded by the Committee on Post Office, which has bestowed so much attention on it, and which is so much more minutely acquainted with the diseased state of the department than your committee (an be, that it would be presumptuous on their part to attempt to add to their recommendation" (S. Doc., vol. 5, loc. cit., supra.).

Debate opened on 8. 128 on January 28, 1835, at which time the ranking minority member of the Committee on Post Office and Post Roads moved to recommit the bill so as to enable certain amendments which he wished to offer. In the debate which ensued, Senator Clayton argued in opposition to recommittal because

* This bill contained the first regular proposition that had ever been submitted to Congress for the organization of the Post Office Department, on the true principles of the Constitution.”

He stated further that “The bill also contained a most important provision, limiting the terms of all postmasters, subjecting their appointment to the supervision of the Senate" (Congressional Debates ; 230 Cong., 2d sess., vol. XI, pt. I, 1834-35, p. 248).

Senator Calhoun asked * whether all the corruptions and abuses discovered in this in the Post Office Department could be traced solely to its defect of organization" (Congressional Debates, loc. cit., supra).

Senator Preston stated :

*** Hotel This bill was reported as a remedy for the evils which had been pointed out by the committee. It appeared to be the conclusion of the committee that the reorganization of the Department would be the cure for the evils which existed in the Department; or, in other words, that all the evils pointed out were the result of the malorganization of the Department. Was any gentleman prepared to say that these enormous, not to say outrageous, evils, were the effect of malorganization only? Was anyone ready to say that the Senate should follow up this extraordinary, enormous, humiliating exposition, with no other measure than a prospective remedy? * * *” (Congressional Debates, loc. cit., supra).

On behalf of the committee, Senator Ewing replied that the committee did not believe that the corruptions and abuses discovered by them were consequent on the defective organization of the Post Office Department. However, he felt it necessary to point out that,

"* * * the committee never believed that these corruptions and abuses could have amounted to the enormous extent shown in the report had the Post Office Department been organized like the other departments of the Government. The committee had boldly and openly expressed the opinion that the vilest frauds had been committed in the transactions connected with that Department; but they had not proposed to devise any remedy for the evils that have passed, though they proposed a measure to prevent their recurrence. The committee did not believe that they could propose any remedy for the evils that have existed. They had not shrunk from the expression of the most candid and open opinion as to the flagrant abuses of trust, and of public law, committed in that Department; and they did not hesitate to say that the President of the United States ought long since to have hurled from their offices, with indignation and disgrace, those who had so shamefully violated the high and sacred trusts reposed in them * * *" (Congressional Debates, op. cit., p. 249).

Senator Calhoun stated that during the 22 years in which he had in some form or other been connected with the Government, he never could have conceived that "such rottenness, such corruption, such abominable violations of trust, could ever exist in any of its departments as those he had just listened to * * * with the utmost mortification. The guilt of the Department was open and palpable. * * * It exceeded anything in the history of the rottenest ages of the Roman Empire * * *" (Congressional Debates, op. cit., pp. 249–50).

Senator Preston stated that they were not all the result of the malorganization of the Department, “but that they were to be ascribed, in a great degree, to the corruptions of the officers employed there.” Continuing, he stated :

"If such a collection of vermin were feeding on the Government it was their (Congress') duty to hunt out and destroy them * * *(Congressional Debates, op. cit., p. 253).

After some further debate and several amendments, the bill was passed by the Senate, without a roll-call vote, on February 10, 1835 (Congressional Debates, op. cit., p. 392). Although the House of Representatives took no action on the bill during the Twenty-third Congress, a substantially identical bill, H. R. 245, was introduced in the House during the Twenty-fourth Congress. After extensive debate, it passed the House on June 2, 1836 (Congressional Debates, 24th Cong., 1st sess., vol. 12, pt. 4, p. 4135), and the Senate on June 20, 1836 (Congressional Debates, op. cit., pt. 2, p. 1851), and became the act of July 2, 1836 (5 Stat. 80), which provided for the first time that postmasters would be appointed by the President, by and with the advice and consent of the Senate.

SENATE COMMITTEE ON GOVERNMENT OPERATIONS,

April 26, 1952. Staff Memorandum No. 82-2–30. Subject: Reorganization Plan No. 3 of 1952, Bureau of Customs of the Department

of the Treasury. Three reorganization plans relative to Post Office (No. 2), Treasury (No. 3), and Justice (No. 4) Departments, were submitted on April 10, 1952, by the President to relieve "the Presidency and the Congress of the unnecessary burden of appointing and confirming a host of subordinate officers” (H. Doc. No. 424).

Unless the House or the Senate adopts disapproving resolutions on one or more of these plans by a constitutional majority, they will go into effect 60 days later, plus the length of Easter recess of the House, or at 12:01 a. m., June 21, 1952.

PRESIDENT'S TRANSMITTAL MESSAGES

Reorganization Plans Vos. 2, 3, and 4 are based on the Reorganization Act of 1949. They extend the merit system to cover more than 20,000 non-policy-making, subordinate officials. The primary objective of civil-service appointment of these many officials, according to the President's general message on all three plans is "to make the execuitre branch of the Federal Government more efficient

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