The opinion of the court was delivered by: BAILEY
This is an action brought to declare invalid, as in contravention of the Constitution of the United States, the second sentence of Section 9(a) of the Act of August 2, 1939, as amended, popularly known as the Hatch Act, 18 U.S.C.A. § 61h(a), 53 Stat. 1147, 1148, 54 Stat. 767, 56 Stat. 181, and to enjoin the defendants, members of the United States Civil Service Commission, "from enforcing, threatening to enforce, or otherwise acting" pursuant to that provision. Defendants have moved to dismiss the action and for summary judgment, the motion being accompanied by affidavit.
The following are the pertinent statutes and regulations:
Section 9(a) of the Hatch Act is as follows:
"It shall be unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, except a part-time officer of part-time employee without compensation or with nominal compensation serving in connection with the existing war effort, other than in any capacity relating to the procurement or manufacture of war material shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects and candidates. For the purposes of this section the term 'officer' or 'employee' shall not be construed to include (1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States on its relations with foreign powers or in the Nation-wide administration of Federal Laws."
Section 9(b) of the Hatch Act is as follows:
'Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person."
Section 15 of the Hatch Act is as follows:
"The provisions of this subchapter which prohibit persons to whom such provisions apply from taking any active part in political management or in political campaigns shall be deemed to prohibit the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the United States by the provisions of the civil-service rules prohibiting such employees from taking any active part in political management or in political campaigns." 18 U.S.C.A. § 61 o, 54 Stat. 767.
Section 18 of the Hatch Act is as follows:
"Nothing in the second sentence of section 9 (a) * * * shall be construed to prevent or prohibit any person subject to the provisions of this subchapter from engaging in any political activity (1) in connection with any election and the preceding campaign if none of the candidates is to be nominated or elected at such election as representing a party any of whose candidates for presidential elector received votes in the last preceding election at which presidential electors were selected, or (2) in connection with any question which is not specifically identified with any National or State political party. For the purposes of this section, questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character, shall not be deemed to be specifically identified with any National or State political party." 18 U.S.C.A. § 61r, 54 Stat. 767.
Revised Statutes, § 1753, 5 U.S.C.A. § 631, contains the following provision:
"The President is authorized to prescribe such regulations for the admission of persons into the civil service of the United States as may best promote the efficiency thereof, and ascertain the fitness of each candidate in respect to age, health, character, knowledge, and ability for the branch of service into which he seeks to enter * * * and may * * * ...