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The act of Congress, approved March 6, 1902, entitled “An act to provide for a permanent Census Office” (32 Stat. 51), provides:
“Sec. 4. That there shall be in the Census Office, to be appointed by the Director thereof, with the approval of the head of the Department to which the said Census Office is attached, *
a disbursing clerk, who shall also act as appointment clerk, at an annual salary of two thousand five hundred dollars. * * The disbursing clerk herein provided for shall, before entering upon his duties, give bond to the Secretary of the Treasury in the sum of twenty-five thousand dollars, which bond shall be conditioned that the said officer shall render a true and faithful account to the proper accounting officers of the Treasury quarter yearly of all moneys and properties which shall be received by him by virtue of his office, with surety, to be approved by the Solicitor of the Treasury. Such bond shall be filed in the office of the Secretary of the Treasury, to be by him put in suit upon any breach of the conditions thereof.''
By the act providing for the Thirteenth Census (36 Stat. 1, 2) the disbursing clerk of the Census Office is relieved of the appointment duties during the three years known as the decennial census period, beginning July 1, 1909; his salary is increased to $2,785 per annum during such period and it is provided that at the beginning of the decennial census period he shall give additional bond in the sum of $100,000, conditioned upon the faithful accounting for all moneys and properties received by him by virtue of his office during the said decennial census period.
The act of February 14, 1903, entitled “An act to establish the Department of Commerce and Labor” (32 Stat. 825), merely provides that there shall be in said department “a disbursing clerk,” without any expression as to the extent of his duties, and by the same act it is also provided that “the Census Office, and all that pertains to the same, be, and the same hereby is, transferred from the Department of the Interior to the Department of Commerce and Labor, to remain henceforth under the jurisdiction of the latter."
It will be observed that the Census Office, as transferred to your department, carried with it the position of disbursing clerk, which position, I assume, has since been regularly appropriated for by Congress. In my opinion, therefore, such position must be regarded as essential to the Census Office organization until Congress otherwise provides, and it would be “inconsistent with law,” within the meaning of section 161 of the Revised Statutes, for you to make the proposed change. Respectfully, WILLIAM R. HARR,
Acting Attorney General. The SECRETARY OF COMMERCE AND LABOR.
RETIREMENT OF EXPERT ACCOUNTANT FOR THE
INSPECTOR GENERAL'S DEPARTMENT.
An expert accountant in the Inspector General's Department is not
entitled to be placed on the retired list on the ground that he has reached the age of 64 years because he is not an officer of the Army within the meaning of the statutes of the United States conferring the privilege of retirement.
DEPARTMENT OF JUSTICE,
September 13, 1911. SIR: I have the honor to acknowledge the receipt of your letter of the 8th ultimo, inclosing an application of Mr. William T. Kent, the expert accountant for the Inspector General's Department, to be placed upon the retired list, on the ground that he has reached the age of 64 years,
, and requesting an opinion upon his right to be so retired.
The statutes of the United States giving and regulating the right of retirement of officers of the Army, pertinent to this inquiry, are the following:
“SEC. 1243. When an officer has served forty consecutive years as a commissioned officer, he shall, if he makes application therefor to the President, be retired from active service and placed upon the retired list. When an officer has been thirty years in service, he may, upon his own application, in the discretion of the President, be so retired, and placed upon the retired list.
“SEC. 1244. When an officer has served forty-five years as a commissioned officer, or is sixty-two years old, he may be retired from active service at the discretion of the President.”
Act of June 18, 1878 (20 Stat. 150):
“That on and after the passage of this act, all officers of the Army of the United States who have served as officers in the volunteer forces during the war of the rebellion, or as enlisted men in the Armies of the United States, regular or volunteer, shall be, and are hereby, credited with the full time they may have served as such officers and as such enlisted men in computing their service for longevity pay and retirement. Act of June 30, 1882 (c. 254, 22 Stat. 118):
And provided further, That on and after the passage
of this act when an officer has served forty years either as an officer or soldier in the regular or volunteer service, or both, he shall, if he make application therefor to the President, be retired from active service and placed on the retired list, and, when an officer is sixty-four years of age, he shall be retired from active service and placed on the retired list; * * * and no act now in force shall be so construcd as to limit or restrict the retirement of officers as herein provided for.” Act of March 3, 1883 (22 Stat. 457):
That nothing contained in the act making appropriations *
* shall be so construed as to prevent, limit, or restrict retirements from active service in the Army, as authorized by law in force at the date of the approval of said act, retirement under the provisions of said act of June thirtieth, eighteen hundred and eightytwo, being in addition to those theretofore authorized
by law. *
(Compare act of February 14, 1885 (23 Stat. 305), as amended in 1890 (26 Stat. 504), providing for the retirement of enlisted men:)
Mr. Kent's application is based, and can only be based, upon the provisions of the act of June 30, 1882, and the question of his right to retirement, therefore, depends upon
the proper construction of that act, read in connection with all the other statutes relating to the same subject.
At the outset, it can not be denied that the privileges conferred by these statutes are confined to officers of the Army, and Mr. Kent must bring himself within that class before he can claim the advantage of those privileges. That Mr. Kent, being appointed “expert accountant for the Inspector General's Department” by the Secretary of War, under a general provision of law (act of June 13, 1890, 26 Stat. 148, 151; act of Feb. 24, 1891, 26 Stat. 770, 773; and especially act of July 16, 1892, 27 Stat. 176) to perform functions defined by law (act of Apr. 20, 1874, c. 117, 18 Stat. 33) and by regulations (Army Regulations, 1904, arts. 900, 909, 910), is an officer of the United States (United States v. Maurice, 2 Brock. 96; United States v. Germaine, 99 U. S. 508) is not enough. It does not follow that, though an officer of the United States, he is also an officer of the Army.” It is clear that an officer of the United States may have functions and duties relating solely to the Army, and may be paid entirely by appropriations for the Army, and yet not be “of the Army." (Brown's Case, 32 Ct. Cl. 379, 386, 387, 388, Huse's Case, 43 ibid., 24; United States v. Burns, 12 Wall. 252; United States v. La Tourrette, 151 U. S. 572, 576; 27 Op. 468, 471, 472, 475.)
The test to distinguish between a civil officer whose duties lie in the War Department and an officer of the Army is that laid down by Attorney General Devens in 16 Op. 13 (and see United States v. Tyler, 105 U. S. 244, 245), viz, that officers of the Army are those officers who are a part of "the military establishment” created by the general acts of Congress organizing the “Army of the United States” and defining what it shall “consist of,” and, as such, are subject to the rules and articles of war. Prior to the passage of the act of February 2, 1901 (c. 192, 31 Stat. 748), the organization of the Army was provided for by Revised Statutes 1094 and the following sections. Neither in the general section 1094 nor in the section dealing specifically with the Inspector General's Department (sec. 1131) is there anything which can be construed to bring
the expert accountant in the Inspector General's Department within the “establishment” thereby created. Nor is there anything different in this respect in the act of February 2, 1901 (supra).
These acts, in so far as officers are concerned, provide for a graded, formal organization, the persons in which have rank and are in line of promotion to a higher, wear uniforms as the badge of that rank, are subject to military discipline, and to orders issued to enforce that discipline, and have acquired, to speak generally, the status of soldiers, as defined in In re Grimley (137 U. S. 147), in addition to their status of citizens or their status of officers of the United States. It would be stretching these statutes beyond their scope to include the expert accountant within the military establishment thereby created.
The appropriation acts for the Army always follow the scheme of organization laid down in the statutes above referred to, and, specifically, in relation to the Inspector General's Department they provide “for pay of the officers in the Inspector General's Department as now authorized and provided by law,” while the provision for the expert accountant is always contained under the heading entitled “Miscellaneous.”
The sections of the Revised Statutes stating the effect of retirement (secs. 1254, 1255, 1256, 1257) and the method of fixing the pay of retired officers (sec. 1274) are equally conclusive against the claim of the expert accountant. He has no “actual rank” within section 1254. He has no “command” and is not in “the line of promotion” within section 1255. He has no “uniform of the rank;" he has never been “borne on the Army Register;” and, as I am informed by the War Department, he is not, in time of peace, and never has been, “subject to the rules and articles of war,” nor “to trial by general court-martial,” within section 1256. There is no way of fixing his pay on retirement, as he has no "rank” to be used as a basis of computation within section 1274. (See also Gen. Wood's case (15 C. Cls. 151) and R. S., sec. 1262, construed in United States v. Tyler, supra.) Finally, he has never been treated by the War Department, in orders or regu