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lations, or in any other way, as an officer “of the Army.” As Chief Justice Nott said in Brown's case (supra):

“The status of such an officer, the department or place to which he properly belongs, is something which can be much better determined by the legislative and executive branches of the Government, than by the judicial.”

Furthermore, there appears to be sufficient reason why the retirement statutes should not be carried beyond their terms by construction. Congress has provided, by the act of February 24, 1899 (30 Stat. 846, 890), as follows:

“The establishment of a civil pension roll, or an honorable service roll, or the exemption of any of the officers, clerks, and persons, in the public service from the existing laws respecting employment in such service is hereby prohibited.

With this distinct legislative prohibition in mind, care should be taken not to extend the Army retirement acts so as, in effect, to create not only a “civil pension roll,” but a limited and special one.

The case of paymasters' clerks (27 Op. 493), which is relied on by Mr. Kent, is distinguishable. That opinion went upon the assumption that a paymaster's clerk has a status in the Army in all essential respects similar to the status of a paymaster's clerk in the Navy, and as the latter officer had been considered by the courts and by the Navy Department to be an officer of the Navy and subject to the rules and regulations of the Navy, it was assumed that the same conditions prevailed as to the analogous office of paymasters clerks in the Army. Whether that assumption was correct or not is immaterial, in view of the recent action of Congress in specifically authorizing the retirement of such clerks. But it will be noticed that such authorization was upon the express condition that “Army paymasters' clerks shall be subject to the rules and articles of war.(36 Stat. 1044.) In any event, the opinion referred to can not be extended to cover the case of the expert accountant in the Inspector General's Department, who, for the reasons already given, is not an officer “of the Army” or 'subject to the rules and articles of war, and is not so considered by the War Department.

My opinion, therefore, is that Mr. Kent is not entitled to retirement under the circumstances stated in your communication, and under the statutes of the United States relating to the subject, and I have the honor to advise you accordingly. Respectfully,

WILLIAM R. HARR,

Acting Attorney General. The SECRETARY OF WAR.

ISSUANCE OF COMMISSION IN NAME OF DECEASED ARMY

OFFICER.

A commission as major of Cavalry can not be lawfully issued in the

name of an officer of the Army whose death occurred after he was nominated to that grade by the President but prior to the time the

nomination was confirmed by the Senate. It is essential to the creation of such office that there should be an appoint

ment by the President, in addition to a nomination to, and consent by, the Senate.

DEPARTMENT OF JUSTICE,

September 22, 1911. Sir: I have the honor to acknowledge the receipt of your letter of the 8th ultimo, requesting an opinion as to whether or not a commission as major of Cavalry can be lawfully issued in the name of John T. Haines, late captain, United States Army, under the following circumstances:

“Capt. Haines became entitled to promotion to the grade of major of Cavalry by reason of seniority from March 3, 1911, as a result of a provision in the Army appropriation act approved that date; he passed the prescribed examination for promotion April 6, 1911, was nominated to the Senate by the President on May 4, 1911, for the promotion, and the nomination was confirmed by the Senate May 15, 1911. But, in the meantime, prior to his confirmation, his death occurred on May 11, 1911.

“The return of his command for the month of April, 1911, shows that Capt. Haines was commanding a squadron of his regiment, the appropriate command of a major, at the time the return was rendered.”

That an appointment by the President, in addition to a nomination to, and consent by, the Senate, is essential, as

an ordinary thing, to the creation of a constitutional office is settled ( Marbury v. Madison, 1 Cranch, 137; 4 Op. 219; 9 Op. 297; 13 Op. 44) and that the appointment must be evidenced either by a formal commission or by some unequivocal act is clear. (Bennett's case, 19 Ct. Cls. 379.) Though an acceptance of the appointment by the appointee may not be necessary (Marbury v. Madison, supra), in analogy to the law in some jurisdictions that a deed is valid after delivery without acceptance by the grantee (Mitchell v. Ryan, 3 O. St. 377; United States v. Schurz, 102 U.S. 378; 12 Op. 229), yet it is clearly necessary everywhere that there should be a grantee in esse, capable of assent, at the time of the delivery of the deed, or making of the appointment. Therefore it must be admitted that if this were a case of an ordinary appointment, where the selection of the person to be appointed had been left by law to the discretion of the President, no valid commission could, in the nature of things, be issued, since Capt. Haines died before any appointment by the President had, in fact, been made.

A promotion in the Army differs from an original appointment therein, in that the discretion of the President is, by regulations and statute, confined in cases of promotion to certain specific persons, and appointment follows as a rule on vacancy, seniority, and a favorable examination. (Act Oct. 1, 1890, c. 1241, secs. 1 and 3, 26 Stat. 562; 17 Op. 196; Howell's case, 25 Ct. Cls. 288; 10 Op. 144; 12 Op. 229; dictum Solicitor General Phillips, 16 Op. 615; and see the résumé of the regulations and legislation in Attorney General Williams's Opinion, 14 Op. 164.) It is spoken of as a "right" in section 3 of the act of October 1, 1890.

Congress has undoubtedly confined the President's discretion in the matter of promotions, to the extent, at least, of designating the class from which the appointment for promotion must be made. It has even been argued that the power both of appointment and promotion in the Army is solely in Congress, under its power" to declare war," "to raise and support armies,” and “to make rules for the government and regulation of the land and naval forces(Const. U. S. Art. I, sec. 8), being withdrawn from the

President's jurisdiction by the words “whose appointments are not herein otherwise provided for" in Article II, section 2. (Fry's Military Miscellanies, Appendix A; report of Senate committee Apr. 12, 1822, Am. St. Pap. Military Affairs, vol. 2, p. 406; report of Senate committee, 58th Cong., Cong. Doc. ser. 4576.) If this view be correct, it might be claimed with some force that the effect of the Army regulations and acts of Congress on the subject of promotion is to give the senior officer a vested right to promotion at the moment a vacancy occurs and to make confirmation by the Senate and appointment by the President unnecessary, or at most merely formal and evidential acts. (Opinion of Attorney General Bates, 10 Op. 144; Gen. Ainsworth's case, 22 Op. 480.). I can not, however, admit the correctness of the above view. Promotion in the Army is, in the last analysis, merely an appointment to a higher office therein; and this fact is illustrated and confirmed by the long established practice of submitting nominations for promotion in the Army to the Senate for confirmation and of thereafter issuing a commission for the higher office. Promotion, therefore, having regard to its real nature, is as much or as little within the President's constitutional power of appointment as an original appointment, and is subject, in so far as that matter is concerned, to the same considerations. Now appointment in the Army as in any other department of the Government is an executive, not legislative, act (Story on Const. Vol. II, sec. 1526; Federalist No. 76; Wyman on Administrative Law, sec. 48), and the provisions of the Constitution are satisfied by giving Congress the power to make the general rules prescribing the organization and government of the Army, leaving to the President, with the advice and consent of the Senate, the designation of the particular individuals who are to fill the office created by Congress therein.

Congress may point out the general class of individuals from which an appointment must be made, if made at all, but it can not control the President's discretion to the extent of compelling him to commission a designated individual. (President Harrison's veto, Feb. 26, 1891, Messages of Presidents, vol. 9, p. 138; Attorney General

Brewster's opinion in Fitz John Porter's case, 18 Op. 18.) Mandamus would not lie against the President in such a case. The matter is really concluded, in so far as this department is concerned, by Attorney General Moody's opinion in Col. Chamberlin's case (25 Op. 591, relying on 13 Op. 13). It follows, therefore, that, while promotion is a "right" inhering in the officer next in the line of promotion and practically almost certain to vest in him, it is yet inchoate in its nature and its legal vesting is subject to the fundamental condition of an appointment by the President, a condition now impossible of fulfillment in Capt. Haines's

case.

That an appointment to an office in the Army when validly made may, in so far as concerns rank and pay, relate back, either by force of a particular statute or regulation (R. S. 1562; Howell's case, 25 Ct. Cls. 288; 7 Compt. Dec. 506; 15 Ibid. 157), or, perhaps, by executive act (United States v. Vinton, 2 Sumner, 299; 3 Op. 124; but compare 4 Op. 608), does not prove that the office itself vests at an earlier time than the date of the commission. Rank, it is said, is different from office (Gen. Wood's case, 15 Ct. Cls. 151; 107 U. S. 414; Pub. Doc. 58th Cong. vol. 7; 22 Op. 480; 25 Op. 591), and Congress has authority to regulate rank. (Same authorities.) While the distinction between rank and office may seem difficult to grasp in some cases, in the present case the office and rank are the same, since the designation “major" comprehends both, and Capt. Haines was not entitled to the "rank" unless he was entitled to the "office” of major.

The circumstances of this case can not but excite sympathy for the family of the deceased officer, but the fixed principles of law do not appear to permit of any

other conclusion than that no valid commission as major can now be issued in his name, and I therefore have the honor to advise you accordingly. Respectfully,

WILLIAM R. HARR,

Acting Attorney General. The SECRETARY OF WAR.

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