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bureau, officer, or any civil, military, or naval commission whatever. Every person offending against this section shall be deemed guilty of a misdemeanor, and shall be imprisoned not more than two years, and fined not more than ten thousand dollars, and shall, moreover, by conviction therefor, be rendered forever thereafter incapable of holding any office of honor, trust, or profit under the Government of the United States."
It is true, as suggested by Maj. Leonard in his communication to you, that this section is a penal statute, and is therefore to be strictly construed, but none the less full effect is to be given to the intention of Congress as manifested by the terms of the enactment.
The terms of the statute are comprehensive. They extend to every
officer or clerk in the employ of the Government.” The prohibition is not simply upon those who because of official position or relation may be able to help or hinder the interests or ambitions of those before whom they appear, but extends to every officer or clerk in the employ of the Government, whatever his rank or function. As first introduced in the first session of the Thirtyeighth Congress the bill was limited in its scope to Members of Congress; and in the discussion of the measure stress was laid upon the influence which Members could exert upon the Departments and upon courts-martial, through their legislative powers, and especially upon the sinister influence which might be exerted by Senators because of their power to reject or to confirm nominations to office. But in the course of its passage through Congress the bill was broadened to include any and every officer and clerk in the employ of the Government. The amendment implied that there was a peculiar opportunity for influence inherent in official position, whatever its dignity, and in the associations of office, which, while it might be properly used, if the prompting to it was one of public spirit or duty, should not be used as a means of pecuniary advantage to the individual holding the position, as in such case opportunities conferred by the Government might be used to its detriment. The statute is a penal enactment, but it
had a remedial purpose, and it was plainly the intent of Congress to make the remedy an adequate one, and so, instead of selecting and enumerating in detail all the offices and positions in which the danger of abuse was apparent, Congress made sure of its purpose by including generally every officer and clerk in the employ of the Government. Senator Trumbull, chairman of the Judiciary Committee, who reported the bill with this amendment, among others, said in the course of the discussion:
“ This is not a bill to prevent attorneys from practicing in courts of law, but it is a bill to prevent Representatives and Senators in Congress and officers of the Government who are paid for their services from receiving a compensation for advocating claims in the Department and before the bureaus of the Government, and before courts-martial. That is the particular question that is pending.” (Cong. Globe, pt. 1, 1st sess. 38th Cong. 555, 561.)
It was clearly within the power of Congress to make the statute comprehensive of everybody in the employ or pay of the Government, and the nature of the case called for a general, rather than for a limited, designation of the persons to be prohibited. .
It is suggested that the designation of “ officer or clerk ” is limited by the words “in the employ of the Government.” These words were not in the law as originally enacted, which, so far as concerned the persons prohibited, read:
“That no member of the Senate or House of Representatives shall, after his election and during his continuance in office, nor shall any head of a Department, head of a bureau, clerk, or any other officer of the Government receive or agree to receive, etc.” (13 Stat. 123.)
The law became and is section 1782 of the Revision of 1873, and now reads:
“No Senator, Representative, or Delegate, after his election and during his continuance in office, and no head of a Department, or other officer or clerk in the employ of the Government, shall receive or agree to receive, etc.”
Saving the inclusion of a Delegate to Congress, the change in the law is one merely of style or wording.
“ Head of a bureau” is omitted from the wording of the statute, but plainly remains within its scope. There are less words in the new description than in the old, and it might be further abbreviated without restricting its significance.
It is said that the law embraces only officers and clerks engaged in some “fixed or regular service or business.” To this I can not agree. The qualifying words of the statute limit its designation to officers and clerks in some employ or service of the Government, a limitation that would no doubt be implied if it were not expressed. If the words “in the employ” were omitted from the statute its sense would not be changed. Certainly those words qualify the designation of “clerk” as much as that of - officer.” I can not conceive of a clerk of the Government who is not in its employ or service, and the same is true of an officer. A man is not an officer of the Government if he is not in some way and to some extent in its employ or service.
The question then is whether or not a person on the retired list of the Marine Corps of the United States is an officer of the Government. In this respect the Marine Corps is to be considered as a part of the Army, for section 1622, R. S., provides:
“ The commissioned officers of the Marine Corps shall be retired in like cases, in the same manner, and with the same relative conditions, in all respects, as are provided for officers of the Army, except as is otherwise provided in the next section.”
The next section simply provides for the composition of the retiring board.
Attention is called to the case of People v. Duane (121 N. Y. 367), the ruling in which is undoubtedly to the effect that a retired Army officer is a pensioner rather than an official, and so is not within the terms of a statute of New York which provides as to aqueduct commissioners that “they and their successors shall hold no other Federal, State, or municipal office, except the office of notary public or commissioner of deeds.” And to like effect is the case of Reed v. Schon (2 Cal. App. 57). In this case
the constitution of California was under consideration. It provided that “no person holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under this State.” The court held that the position of a retired Army officer “is a mere sinecure, without any duties attached to it; and hence that it can not properly be called an office.” And it is said in this case that the expression “retired officer” may “be regarded as fairly synonymous with the words “ ex officer,' or ci-devant officer,' and implies that he is no longer an officer in the proper sense of the term.”
These cases deny proper effect to the statutes of the United States, which fix the status of retired officers.
The first section of the act of February 2, 1901, 31 Stat. 748, deals with the composition of the Army, and provides that it shall consist of certain regiments of Cavalry and Infantry, a corps of Artillery, certain officers, and departments, and “the officers and enlisted men of the Army on the retired list.” So by positive declaration of statute these men are not pensioners, but soldiers, not “ex” or “ci-devant,” but actual soldiers, incorporated into the Army as an existing, integral part of it, by the same law and the same section of the law, which makes their brothers on the active list a part of the Army.
Chapter 2 of title 14 of the Revision deals with retirement, and it provides for retirement from the service and for retirement from active service.
Section 1275, R. S., provides as to officers who are retired from the service that they “shall be entitled to receive, upon their retirement, one year's pay and allowances of the highest rank held by them, whether by staff or regimental commission, at the time of their retirement.”
And this is all. These men are in the language of the section making this provision for them“ wholly retired " from the service. They are “ex” or “ci-devant" officers.
But the case is very different as to retirement from active service. Section 1256, R. S., provides:
“ Officers retired from active service shall be entitled to wear the uniform of the rank on which they may be re
tired. They shall continue to be borne on the Army Register, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach thereof."
Officers retired only from active service may not simply continue to wear the uniform of their rank, they are not simply continued upon the Army Register, but they are subject to Army discipline, and this can be only because they have not been wholly relieved from Army duties and obligations. They are still soldiers.
A number of provisions are to be found in the statutes regarding the detail of such officers for various purposes in times of peace, and of course they must respond to the orders of Government, whatever these may require, in times of war.
To the contrary of the New York and California cases is that of State v. De Gress (53 Texas, 387), and that of Hill v. Territory (2 Wash. Terr. 147), but we need not discuss them, inasmuch as the question has been determined by the Supreme Court of the United States, and its rulings must prevail.
In United States v. Tyler (105 U. S. 244) claim for increase of pay was made by an officer on the retired list under sections 1262 and 1263, Revised Statutes, which provide:
Sec. 1262. There shall be allowed and paid to each commissioned officer below the rank of brigadier general, including chaplains and others having assimilated rank or pay, ten per centum of their current yearly pay for each term of five years of service.
“ SEC. 1263. The total amount of such increase for length of service shall in no case exceed forty per centum on the yearly pay of the grade as provided by law.”
The opinion of the court was by Mr. Justice Miller. He first notes the distinction between retiring wholly and retiring from active service, and says as to this (pp. 244 and 245):
6. These sections are taken from the act of July 15, 1870, chapter 294, and constituted the law on that subject when