Message to the House of Representatives Returning Without Approval "An Act Making Appropriations for the Legislative, Executive, and Judicial Expenses of the Government for the Fiscal Year Ending June 30, 1913, and for Other Purposes"

To the House of Representatives:

I return herewith, without my approval, H.R. 24023, entitled "An act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1913, and for other purposes." This is one of the great supply bills necessary for the maintenance of the Government, and it goes without saying that nothing but reasons of especial importance would lead me to interpose objections to its passage.

In a message returning the Army appropriation bill to the House of Representatives with my objections to its approval, under date of June 17, 1912, I ventured to point out the dangers inherent in the practice of attaching substantive legislation to appropriation bills, and I need not repeat them here. It is sufficient to say, however, that when it is thought wise by Congress to include in general supply bills important substantive legislation, and the Executive can not approve such legislation, it is his constitutional duty to return the bill with his objections, and the responsibility for delay in the appropriation of the necessary expenses to run the Government can not rest upon the Executive, but must be put where it belongs—upon the majority in each House of Congress that has departed from the ordinary course and united with an appropriation bill amendments to substantive law. The importance and absolute necessity of furnishing funds to maintain and operate the Government can not be used by the Congress to force upon the Executive acquiescence in permanent legislation which he can not conscientiously approve.

There are two provisions in this bill which I can not permit to become law with my approval. One concerns the permanent statutory regulation of the tenure of office of those now included within the classified service in the departments and independent establishments of the Government within the District of Columbia. The other is a provision repealing the statute creating a Commerce Court, to consist of five circuit judges, for the purpose of passing on appeals from the decisions of the Interstate Commerce Commission.

First. By section 4 of this act the Civil Service Commission is directed, subject to the approval of the President, to establish a system of efficiency ratings for the classified service in the several executive departments in the District of Columbia, based upon records kept in each department and independent establishment with such frequency as to make them as nearly as possible records of fact. The system is to provide a minimum rating of efficiency which must be attained by an employee before he may be promoted; a rating below which no employee may fall without being demoted; and a rating below which no employee may fall without being dismissed for inefficiency. All promotions, demotions or dismissals are to be governed by provisions of the civil-service rules. Records of efficiency are to be furnished by the departments and independent establishments to the Civil Service Commission.

This section 4 is an admirable section, and, if properly carried out, will greatly improve the present civil service.

Section 5, however, introduces a new and radical feature into the present system. It provides that every appointment in the classified service after the 1st of September of next year shall be for a term of seven years after the probationary period of six months has expired, and that at the expiration of each such appointment the employment of each person so appointed shall cease and determine; and that the employment of all persons, appointed prior to September 1, 1912, in such classified service at annual rates of compensation shall cease and determine within one year after August 31, 1919, the date of termination during that year to be determined by the head of the appropriate department according to previous length of service. The cessation of employment and the ending of the term in these cases is absolute, without regard to efficiency rating under section 4, but section 5 contains the proviso that all persons separated by its terms from the classified service, if they are up to the standard of efficiency then in force and capable of rendering a full measure of service, may, in the discretion of the head of the executive department, be reappointed without examination for another term of seven years.

The effect of this section is to leave it to the discretion of the head of the department in the case of each classified employee at the end of his term of seven years to say whether that employee, no matter how high his standing, shall continue, or whether another shall be selected from the eligible list submitted in accordance with law and regulation by the Civil Service Commission.

I believe this to be a genuine effort on the part of those who propose it to meet the difficulty presented in the present civil-service system by superannuation of the employees and the impossibility of eliminating those who through age and disease have ceased to be efficient. It is recognized that one method of meeting this difficulty is by a system of civil pensions which will retire persons from the civil service at a certain age, or upon confirmed disability. It has been found impossible to secure an enforcement of the present law which requires every person who is not efficient in the service of the Government to be discharged, because it imposes upon the heads of departments and bureaus the disagreeable and ungracious duty of throwing out of employment, without any means of livelihood, the men and women who have spent many years in the employment of the Government and in times past have rendered good service.

I disapprove of section 5 because I do not think it will accomplish its proposed purpose, and I do not think it adds anything in efficiency to the provisions of section 4. If section 4 is carried out, then the superannuated will have to go when their inefficiency is properly determined, and this whether section 5 is on the statute book or not; and if section 4 is not enforced, then section 5 adds little or nothing in the way of getting rid of superannuated and inefficient clerks.

If section 4 is loosely enforced, so that the rate of efficiency of the superannuated clerk is charitably maintained by his superior at or above the minimum standard, there will be the same pressure to retain the clerk at the end of his seven years as there was to maintain his minimum rate, and the same reluctance as in the present system to turn him out at an advanced age without means of a livelihood after long years of service.

I do not share in the objection to a civil-pension system. I am strongly in favor of it, provided it involves features of compulsory insurance of employees, secured by an application of part of the salary of each toward the maintenance of the necessary funds. Such a system has already been embodied in the Gillett bill, and I know of no reason why it should not be adopted.

As to the present measure, I object to it, first, because for the reasons stated it will prove ineffective, as the present system has, in the matter of superannuated clerks; and, second, because it impairs that feature of the civil service which I regard as a most valuable one, to wit: The permanence of tenure on the one hand, balanced by a wide and almost absolute power of removal in the department head on the other. If at the end of each seven years it becomes necessary for one who has spent the best years of his life in the public service to ascertain whether he is to continue, it is certain that he will bring pressure to bear in every direction upon the appointing power to continue him in office. I am perfectly aware that the motive for not reappointing him will be much reduced by the fact that his successor must be appointed from the eligibles of the Civil Service Commission, but the play which this will give for prejudice and arbitrary action in the appointing power will constitute a serious injury to the present tenure of office.

Much has been said in the way of criticizing the present service as to the overpayment of the civil servants. It is true that in the departments there are many at salaries between $900 and $2,000 who are overpaid, but it is also true that there are many within those limits and nearly all who serve at salaries higher than $2,000 who are underpaid. The efficiency and wonderfully loyal service rendered by many of the employees of the Government who have concluded to devote their lives to the public service, to be content with only moderate salaries, because of the permanence of the tenure, can only be known to those who have had large experience in the character of the service rendered by the civil servants in the District of Columbia. I am not content to risk serious injury to the tone and efficacy of that service to accomplish something that in my judgment will not be accomplished by a change which will rob those who are in the service of a peace of mind that makes up in some degree for the sacrifices they have been obliged to undergo in devoting their lives at small pay to the Government. I am aware that there are maligners and others in the service who contribute but little to its efficiency. They would be disposed of by the proper enforcement of section 4.

But there is a large part of the civil-servant body which consists of hard-working, loyal, and efficient persons, who render to the Government more than they receive and who give character to the service. It is their permanence of tenure that led them to seek the service and keeps them in it. Of course it will be said that such clerks are likely to be retained. Probably; but the difference between mere probability of continuance and permanent tenure is the difference between worry and active solicitation of every influence in the seventh year and that contentment of mind that is alone consistent with undivided attention to public duty.

Second. The Commerce Court was created by the amendment to the interstate-commerce act passed June 18, 1910. Prior to that time, whenever an order of the Interstate Commerce Commission was made against a railroad company over which the Interstate Commerce Commission was given supervision, and it was contended that the order was contrary to law, or was a taking of the property of the company without due process of law, or, in other words, was confiscatory, jurisdiction belonged to the circuit courts of the United States to enjoin the orders of the commission until their validity could be established. It had been the purpose of many to give to the Interstate Commerce Commission complete regulatory control over the railroads of the country in the matter of rates and in other features of their management, without allowing courts to interfere.

But it was clearly developed that any law was unconstitutional by which it was attempted to deprive the railroad companies of the right to go into court to test the validity of an order as confiscatory or violative of the statutory authority of the commission, and that if no provision at all were made for such judicial review, then the courts would possess it without special authority. So such jurisdiction in circuit courts of the United States was recognized in the act. The system involved hearings in circuit courts of 84 different districts in which the cause of action might arise. The litigation begun at Washington and carried through the Interstate Commerce Commission might then be transferred to some distant district. The district judge, or the circuit judge, or the circuit court of appeals took up the case, presenting a subject matter often entirely new, and found it difficult promptly to dispose of it in the multitude of other duties. This system imposed a delay in the necessary judicial consideration of interstate-commerce orders before they became effective that sometimes postponed their going into force for several years. In the interest, therefore, of the dispatch of business, in the interest of the public, and especially in the interest of the shippers who were seeking to prevent injustice by the railroads, it was thought wise to create a court of five circuit judges whose first duty should be to sit en banc as a Court of Commerce into which all complaints might be brought for prompt hearing and disposition.

The statistical record of the last two years shows that the average time in which this ordinary litigation, following the Interstate Commerce Commission's orders before the order of the commission shall become effective, has been reduced from more than two years to about six months. The litigation has not occupied all the time of the Commerce Court, and under special provisions of the act. the Chief Justice of the United States has assigned the circuit judges to judicial labors in the Federal courts all over the country, greatly to the advantage of litigants and to the dispatch of business in those courts. It should be said that under the provisions of the section abolishing the Commerce Court in this bill, jurisdiction to consider the validity of the orders of the Interstate Commerce Commission is given to a court of three judges in each of the nine circuits, one of the judges to be a circuit judge or a Supreme Justice. This requirement, good in many ways, only makes the delays of such a countrywide jurisdiction more certain and is in no way comparable in the matter of dispatch of business to the Commerce Court system.

It appears from the decisions of the Supreme Court of the United States that the Commerce Court in several cases has amplified its jurisdiction beyond that which a proper construction of the statute justified. It also appears that in a number of cases the decisions were against the shippers and for the railroads when the Supreme Court decided that they ought to have been the other way. On the other hand, it appears that in a number of other cases the decisions of the Commerce Court were in favor of the shippers and in favor of giving relief to the shippers, against the railroad companies, but that the Supreme Court has. since denied the existence of such jurisdiction under the statute. A series of decisions of the Supreme Court has satisfactorily established the limits of the jurisdiction of the new court, and there is no reason to believe that those limits thus established will in future be exceeded. There is every reason to believe that the dispatch of business already promoted by the court will continue. And now the question is, Why should the court be abolished? Because it has made some mistakes that the Supreme Court has rectified? Lower courts, especially when exercising new jurisdiction, are likely to make errors to be corrected by the Supreme Court. The presiding judge of the Commerce Court was the chairman of the Interstate Commerce Commission for a great many years. Three of the Commerce Court judges before their appointment to the Commerce Court had been United States district judges of long experience, and one had been a State judge of standing and experience. The personnel of the court is to change from year to year by the assignment of one of the Commerce Court judges to a circuit court of appeals, and the designation of another circuit judge to fill the vacancy thus made.

I have read the arguments upon which this proposed legislation is urged and I can not find in them a single reason why the court should be abolished except that those who propose to abolish it object to certain of its decisions. Some of those decisions have been sustained and others have been disapproved or modified by the Supreme Court. I am utterly opposed to the abolition of a court because its decisions may not always meet the approval of a majority of the Legislature. It is introducing a recall of the judiciary, which, in its way, is quite as objectionable as the ordinary popular method proposed. Next to impartial and just judgment the great desideratum in judicial reforms to-day is the promotion of the dispatch of business and the prompt decision of cases. The establishment of the Commerce Court has brought this about in a substantial way by reducing the average delay from two years to six months, and I doubt not that as time goes on and the procedure becomes better understood this period of six months will be further reduced. It is greatly in the interest of the shippers and therefore of the public that this means of reducing the time of effective remedial litigation against railroads should be preserved.

WM. H. TAFT.

The White House, August 15, 1912.