was deemed sufficient in United States v. Tinklepaugh, supra, to constitute a deputy marshal a public officer.

(1) The deputy clerk takes the same oath, substantially, which is prescribed generally for officers of the United States by section 1757, Revised Statutes, namely, “That I will faithfully and impartially discharge and perform all the duties of my said office" (Revised Statutes, sec. 794). None but officers take such an oath (12 Op. 521).

(2) By section 748, Revised Statutes (which, though repealed, apparently, by sec. 297 of the Judicial Code, may still be looked to on this point), the deputy clerk is forbidden to practice as an attorney in any cause pending in any district" for which he is acting as such officer."

I have the honor, therefore, to advise you that deputy clerks of district courts of the United States come within the provisions of the act of Congress approved August 5, 1909 (36 Stat. 118, 125).

Respectfully,

GEORGE W. WICKERSHAM.

THE SECRETARY OF THE TREASURY.

STATUS OF ARMY OFFICERS PROMOTED BY RECESS APPOINTMENT.

The acceptance by an Army officer of a recess appointment is provisional only and leaves to the officer a reversionary right to his former office in case his new appointment is not confirmed by the Senate.

An Army officer who accepts a recess promotion and thereafter becomes eligible for retirement by reason of age before the adjournment of Congress and before the appointment is acted upon by the Senate, is entitled to the rank of his new appointment.

DEPARTMENT OF JUSTICE,

December 14, 1912.

SIR: I have the honor to comply with the request in your note of December 9, 1912, for an opinion upon the questions there stated, as follows:

66 1. Whether in the case of any of the officers promoted by recess appointment as set forth in said report, if the nomination shall fail of confirmation by the Senate during

its present session, the particular officer will revert at the expiration of his recess appointment to the office from which promoted in view of the system of promotion by seniority and of the statutes referred to in said report, which appear to establish the principle of continuous service in the Army either on the active or retired list;

"2. Whether, if the nomination of Gen. McClernand shall not be acted on by the Senate prior to December 29, 1912, when he shall reach the age of 64 years, he may then be placed on the retired list; and, if such action be taken, whether his status as an officer on the retired list will not be just as permanent as if he held at the time of retirement a permanent commission in the Army."

The "report" above referred to is a report made in this case to the Secretary of War by the Judge Advocate General upon the questions involved in your request and is attached to your letter of December 9.

The status on the active list of the Army of officers promoted by recess appointment, not confirmed by the Senate, depends upon whether or not the acceptance of such a recess appointment by an officer operates as a resignation or permanent vacation of the former office from which the officer was promoted; or, amounts only to a provisional or conditional vacation of the former office, depending for its permanency upon the confirmation in the new office by the Senate, thus leaving to the promoted officer a reversionary right to return to his former office if his promotion is not confirmed.

If the first alternative is the correct one, then, if the recess appointment be not confirmed, the officer is out of service, having resigned or vacated the only office which he held and failed to obtain confirmation to that to which he was nominated.

This would violate not only the fundamental idea of continuous service and promotion in the order of seniority but would be in direct violation of article 99 of the Articles of War, which provides that:

"In time of peace no officer shall be dismissed except in pursuance of the sentence of a court-martial or in mitigation thereof;

*

*99

No special importance is attached to the particular word "dismissed" as here used. Any form of removal of an officer from his office without his consent is a dismissal.

This reasoning would seem to preclude the idea that the acceptance of such a promotion constitutes a permanent resignation or vacation of the former office; and it can not be well said that, by acceptance of a recess promotion, an officer consents to his removal from office and from the service, if it be not confirmed by the Senate.

It is true that the other alternative above suggestedthat the recess promotion amounts to a conditional vacation of the original office held with a reversionary right in the office held at the time of promotion, dependent upon the failure of confirmation in the new office-is not wholly satisfactory, and yet seems to me to present the only practical solution of the problem.

The authorities upon this subject, including the action of Presidents and the Secretary of War, are not harmonious, and the question is not considered as settled.

These authorities, including the statutes bearing upon the subject, are fully cited and commented upon in the memorandum of the Judge Advocate General submitted in this case, and they need not be again cited here. I content myself with a reference to them and the expression of my opinion as a conclusion from them and from a view of the whole subject.

One of the objections to holding that such recess appointment is but a provisional vacation of the former office, as above suggested, arises from the act requiring promotions to be made in the order of seniority, if the officer next in line is qualified, and from the practice of Presidents and the War Department in conformity therewith.

In case of such a promotion the officer next in seniority, if qualified, would be promoted to fill the vacancy thus created, and then the next one, and so on down the line. Then, if the vacation of the office by the officer first thus promoted be but provisional and dependent upon his confirmation, so also would be those of the succeeding officers.

It might happen that the Senate should adjourn without confirming the appointment of an officer promoted to a

higher grade, while confirming that of a junior officer nominated to the office which the senior officer had held. This, if effectual, would put the officer whose promotion was not confirmed out of office and out of the service, despite the provisions in the statute above referred to.

But such a case can hardly be supposed; the injustice of the case would certainly restrain the Senate from taking action which would have that result.

The objections to the construction that the acceptance of a recess appointment is provisional only and leaves to the officer a reversionary right to his former office in case his new appointment is not confirmed, do not in my opinion outweight the express prohibition of the 99th Article of War and the long and uniform practice of the War Department in conformity therewith, that no officer can be removed from office except in pursuance of the sentence of a court-martial or in mitigation thereof.

Your remaining question relates to the retirement of Gen. McClernand and as to his status on the retired list of the Army. This question seems a more difficult one than the former.

Gen. McClernand was given and accepted a recess appointment which has not been confirmed or acted upon. This, I assume, was an appointment by way of promotion to a higher office. On December 29, 1912, he will have reached the age of 64 years, the age at which officers are retired from the active service and placed on the retired list of the Army.

If before that date the Senate should confirm his recess appointment, there would be no question remaining, as he would then be placed on the retired list with the rank and grade of his new appointment, under the section of the Revised Statutes next cited.

But if this appointment should fail of confirmation, he will be placed on the retired list; but the question will be as to his status on that list. Will he be retired with the rank of his unconfirmed recess appointment, or with the rank of the office from which he had been appointed? For he can not be retired without some rank or grade.

Section 1254 of the Revised Statutes provides that:

"Officers hereafter retired from active service shall be retired upon the actual rank held by them at the date of retirement."

This still leaves in this case the question of what is the actual rank which will be held by Gen. McClernand at the date of retirement. Will it be the rank of his recess appointment, or that of the office which he formerly held?

The "actual rank" held by Gen. McClernand at the date of retirement is that of the office which he holds at such date. He will not then hold the rank of his former office, for he has accepted an appointment to another office; and he can not hold both. While if he is not confirmed he falls back into his former office, as I have just held, until that event happens his actual office is that to which he has been appointed by the President under his constitutional power to fill offices where vacancies exist during the recess of Congress.

It must be taken as true that all such recess appointments, while they continue in force, confer an absolute title to the office named and to the rank thereof, and that such appointments do continue until rejected by the Senate or the Congress adjourns without any action being taken thereon. This being so, if, on December 29, 1912, when Gen. McClernand reaches the age of retirement, the Senate has not rejected his nomination and Congress has not adjourned,1 his recess appointment will be in full force, conferring an absolute title to the office and rank thereof, and that will be the only office which he will then hold; hence, if then retired, such appointment will determine the rank at which he shall be retired.

I am therefore of the opinion that each of your questions should be answered in the affirmative.

Respectfully,

GEORGE W. WICKERSHAM.

THE SECRETARY OF WAR.

1 The usual holiday recess is not an adjournment ending a session within Const., Art. II, sec. 2, par. 3.