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such an important matter it would have said so expressly, and not merely by implication from a general power to make rules and regulations, or specific powers to make such rules upon other subjects. The purpose or policy of the Government, in whichever way expressed, can not be thus changed. On the contrary, the rules and regulations which the Secretary is authorized to make are those only which conform to and subserve this purpose or policy with others properly expressed.
Again, Congress has at various times restricted, regulated, and forbidden this public right of hunting or fishing in certain portions of the public lands and waters, and has adopted certain measures for the preservation of game and fish in specified localities; and we are bound to presume that, in doing so, it thus adopted all the measures in that direction which it then intended should be enforced. And still further along the same line of argument, Congress has conferred upon the Secretary many specific powers with reference to these forest reserves, and we must assume that it has done so to the full extent to which it was intended that he should exercise power. And in the act of June 4, 1897 (30 Stat., 11, 34), Congress has expressly declared the objects of forest reserves to be the protection of forests and favorable conditions of water flows, and has declared the general provisions under which said reserves shall be controlled and administered, and, what is more significant, has conferred specific powers upon the Secretary with reference to their control and management, but not including the power in question, which must therefore be taken as not intended to be conferred.
It is true that this power is, inter alia, to regulate the "use and occupancy" of the reserves. But, in view of the whole act, this must obviously be taken to mean the use and occupancy by the various persons who, for various purposes, are by that act and others expressly permitted to enter upon, use, and occupy
such reserves. And on page 36, after referring there and in other places to various classes of persons who are permitted there for various purposes, it is stated “nor shall anything herein prohibit any person from
entering upon any such forest reservation for all proper and lawful purposes.
" It is therefore obvious, that, unless hunting, trapping, or fishing is made unlawful by either Federal or State law, the Secretary can not prohibit it there.
More than this, by provision on page 36, the civil and criminal jurisdiction of the State within which such reservation is situated is expressly recognized, and that all persons on such reservation are subject to it, and if citizens, with all the rights of citizens of such States; so that, if State laws permit hunting or fishing there, the Secretary may not forbid it, or, if unlawful, he can not permit it. And then, in
, the act of March 3, 1899 (30 Stat., 1095), with the subject of game preservation in the forest reserves directly before it, Congress, instead of authorizing the Secretary to prescribe general rules to that end, contented itself with directing that forest agents, rangers, etc., should aid in the enforcement of State or Territorial laws for the preservation of game and fish; and this appears to have been as far as Congress was then willing to go.
Under these circumstances, I am constrained to the opinion that, until further legislation, the Secretary of the Interior is not authorized to prescribe rules and regulations by which the national forest reserves may be made refuges for game. or by which the hunting, killing, or capture of game in such reserves be forbidden.
It is with regret that I reach this conclusion, as I would be glad to find authority for the intervention by the Secreretary for the preservation of what is left of the game, from wanton or unnecessary destruction; but it would seem that whatever is done in that direction must be done by Congress, which alone has the power.
I return herewith the letter of Mr. Pinchot, transmitted with your note. Respectfully,
P. C. KYOX. The PRESIDENT.
CIVIL-SERVICE RULES—AMENDMENTS. It is within the power of the President so to modify the Civil-Service
rules as to impose upon all officers and employees in the public service the duty of giving to the Civil Service Commission or its authorized representatives all proper and competent information in regard to all matters inquired of, and to subscribe to and make oath to such testi
mony before some officer authorized by law to administer oaths. The imposition of such a duty upon every officer and employee in the
public service is neither unreasonable nor unsuitable. It is clearly within the exercise of the Executive power and its legality can not be
doubted. Other proposed aŭendments commented on.
DEPARTMENT OF JUSTICE,
December 2, 1901. Sir: I have the honor to return herewith the respective drafts of proposed amendments to Rules II and VIII and section 13 of Rule VIII of the Civil-Service rules, which were handed to me by Mr. William Dudley Foulke, of the Civil Service Commission, under your direction, for my consideration and advice to you respecting the legality of the proposed modifications.
It is proposed to amend Rule II by adding the following clause, to be numbered 9:
“For the purpose of enabling the Commission to make the investigations authorized by section 2 of the Civil-Service act, it shall be the duty of every officer and employee in the public service to give to said Commission or its authorized representatives all proper and competent information and testimony in regard to all matters inquired of, and to subscribe such testimony and make oath or affirmation to the same before some officer authorized by law to administer oaths.”
The provision of section 2 of the act as to investigations is as follows:
“Said Commission may make investigations concerning the facts, and may report upon all matters touching the enforcement and effects of said rules and regulations, and concerning the action of any examiner or board of exami. ners hereinafter provided for, and its own subordinates, and those in the public service, in respect to the execution of this act.”
The new section of Rule II prescribes a duty for every officer and employee in the public service, which the fact of employment in that service makes obvious. The exercise of the executive power to direct and instruct subordinates in the Government service upon fundamental considerations, and your extensive authority under the Civil-Service law to impose suitable rules to carry its spirit as well as its letter into effect, are necessarily guided by the wide discretion which is and was meant to be confided largely to the President's own judgment and views. I am not able to perceive that the proposed requirement, by which information and testimony upon proper subjects of civil-service investigation may be elicited from Government officers and employees in an orderly and formal way, is either unreasonable or unsuitable. In the light of the principle which I have stated respecting the executive authority on this subject, I conceive that the legality of the new provision can not be doubted. It is no answer to this position to say that the law does not empower the Commissioners to issue subpænas to witnesses nor to administer oaths. The Commissioners do not propose to do these things; the requirement is restricted to Government officers and employees; no definite penalty for refusal to testify is imposed.
Section 13 of Rule VIII provides in its first sentence for temporary appointments for emergency service where there are no eligibles upon a register and the place must be filled before eligibles can be provided by the Commission. The present rules require for regular appointment a certification of the names of three eligibles (sec. 1, Rule VIII). The proposal is to add at the end of the first sentence of section 13 language which provides that where there are not more than two eligibles, one, or one of the two, may be appointed in the same manner as if three eligibles were available for certification; and if the appointing officer elect not to make a regular appointment from such incomplete register, he must select the one eligible or one of the two thus available for temporary appointment, unless special reasons are given and approved (sec. t, Rule VIII) why the selection should not be so made.
For the reasons herein given respecting the scope of your
power to frame rules and to call upon the Civil Service Commission in aid of this power, which is patent upon the face of the law and of the existing rules, I perceive no legal objection to this proposed change. Indeed, it may be said that all of the amendments under consideration are merely modifications of the existing rules, and import no violent or illogical changes. If the rules as they stand are proper and legal, these alterations will make them no less so. Short of a purpose to break down this law, or impose some arbitrary and unfair requirement which is inconsistent with the spirit of law in general, (a supposition too absurd to be indulged), it is not too much to say that the determination of the contents of these rules rests almost wholly with the President himself.
Respecting the last-mentioned amendment, I desire to point out what appears to be an inadvertent repugnancy. Section 13, under the amendment suggested, permits a temporary appointment to continue no longer than three months, eren though made as now proposed by selection of one eligible or of one of two eligibles on a register when there are not three eligibles; whereas section 17 of the same rule provides that “whenever a temporary appointment shall be made through certification from the eligible registers
such temporary appointment shall in no case continue longer than six months
The other amendment to Rule VIII proposes to add a clause, to be numbered 16, providing that in order to secure proper enforcement of sections 2 and 7 of the Civil Service act and of the existing rules, the Commission shall, whenever it finds that any person is holding a position in the civil service in violation of law, certify information of the fact, after notice to the person affected and to the Department or branch of the Government under which he servesto the disbursing and auditing officers through whom the payment of such person's compensation is made, and thereafter these officers shall not pay such compensation or permit it to be paid.
Section 2 of the Civil-Service act makes it the duty of the Commissioners to aid the President, as he may request, in preparing suitable rules for carrying the act into effect; and