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viz., the Forty Fifth Congress; that as this Congress ceased to exist on the said March 4th, after which no action by it upon the report was possible, it might properly be said to have "acted upon" the same within the general terms of the act; and that accordingly, from and after the said date, the prohibition against the making of military appointments might be considered at an end. But held that the President, in thereafter appointing to vacancies which had in fact occurred during the period of prohibition fixed by this act, could not legally date back the appointments to take effect as of the dates of the vacancies, but that such appointments could take effect only on or after the said March 4th. XLII, 197, March, 1879; XLIII, 85, November, 1879. 414. Held that the provision of sec. 6 of the act of March 3, 1869, prohibiting appointments and promotions in the medical and other staff corps did not apply to or prevent the advancement in rank of assistant surgeons from lieutenant to captain; the increased rank of these officers resulting by operation of law, after three years' service, under the Act of July 28, 1866 (Sec. 1168, Rev. Sts.), and no new appointment being required for the purpose. XXXI, 220, 223, March, 1871.

415. Held that a civilian (in this case a late captain who had been made a civilian by the approval and execution of a sentence dismissing him from the army) could, under existing law, be appointed to the line of the army only in the grade of second lieutenant, in the absence of express authority from Congress. For his appointment to his former grade, so as to except his case from the operation of the rule of promotion by seniority, the authority of Congress would be necessary." XXXVII, 363, March, 1876; XXXVIII, 159, July, 1876; XLIII, 130, January, 1880.

416. Held that an appointment of a person as an officer of the army with the view and purpose of at once placing him on the retired list, would not be within the appointing power of the Executive, independently of authority from Congress; appointments to military office by the President being in contemplation of law appointments for the active duties and service of the military life, which can properly be performed only by men physically and mentally qualified therefor. Congress, however, of course may, as it has done in several cases,* by a special enactment authorize the President to appoint an officer and thereupon place him on the retired list. XLIII, 130, January, 1880.

'The appointments were made according to this view, and were confirmed, after considerable debate, at the first session of the Forty-sixth Congress.

"See, to a similar effect, 16 Opins. At. Gen., 651.

3See 14 Opins. At. Gen., 2, 164, 499.

*See acts of June 21, 1876, c. 143; June 19, 1878, c. 330; Mch. 3, 1879, c. 175; Mch. 3, 1879, c. 201.

417. There can be no question as to the power of Congress to authorize the appointment of an officer with both rank and pay from a back date.' So the President (except where expressly prohibited by statute) may, with the concurrence of the Senate, appoint an officer with rank from an earlier date, though not, except by express authority of Congress, with back pay. But where an appointment to a specific military office has been duly made and accepted and has taken effect, held that the appointing power, as to that office, is exhausted. The Executive may indeed correct an error (of fact) in the date of such appointment, but-no such error existing-he can not re-make the same as of a different and earlier date, either by his own action or by means of a re-nomination to the Senate, for the purpose of redressing an injury or grievance claimed by the officer to have resulted from the date originally given to the appointment. For such would be a granting of relief, and relief of a sort which can be accorded only by Congress. XLIII, 208, February, 1880.

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418. The authority to "appoint" regimental staff officers, conferred upon regimental commanders by the Army Regulations, is no part of the constitutional appointing power, but is merely an authority to select and detail. As such it may be regulated by orders from the War Department, where desirable to prevent its being so exercised as to prejudice the interests of the service. Thus it is competent for the Secretary of War to direct by general order that such appointments shall not be dated back so as to take effect as of dates prior to those on which they were actually made, as also that appointees shall not become entitled to the additional pay for a period prior to their entering upon their duties. XLI, 609, July, 1879.

419. The function of regimental quartermaster is not an office but merely a duty attached to the office of a first lieutenant appointed to exercise it. The authority given to the commander of a regiment, by the Army Regulations, to "nominate the regimental quartermaster to the Secretary of War for appointment if approved," is simply an authority to recommend a first lieutenant for the position, and the Secretary, in making the appointment, does not exert any of the appointing power of the Constitution, but only a power of selection and detail. Under Art. II, Sec. 2, par. 2, of the Constitution, a head of an executive department cannot appoint to office without being empowered to do so by Congress. Thus, the appointment of a regi

15 Opins. At. Gen., 101; 6 id., 68, 74; 7 id., 709, 712.

24 Opins. At. Gen., 318, 603, 608; 5 id., 132; 8 id., 223; United States v. Vinton, 2 Sumner, 299.

3See 3 Opins. At. Gen., 307.

See the subsequent G. O. 73, Hdqrs. of Army, 1879, in accordance with this opinion.

mental quartermaster being a mere detail, the Secretary of War is authorized at any time to withdraw or discontinue the appointment and service of a particular officer as regimental quartermaster, and to call upon the regimental commander to nominate another first lieutenant therefor. XLII, 567, April, 1880.

420. A regimental commander is not obliged by army regulations, to appoint to be sergeants or corporals of companies, the soldiers recommended to him for such appointments by the company commanders. He is to be regarded as vested with a discretion in the matter, and though in the great majority of instances he will properly appoint as recommended, he may, and should, decline to appoint where he believes the nominee to be an unfit person. XXVII, 159, September, 1868.

421. An enlisted man, beside being unmarried and not over 30 years of age, must have served honorably not less than two years, and be a citizen, to qualify him for examination and appointment as a commissioned officer. (Act July 30, 1892.) 57, 155, December, 1892. Under Sec. 2166, Rev. Sts., an alien (of 21 years of age) who has been honorably discharged as a soldier, may be naturalized without previous declaration of intention and after but one year's residence. But as the existing law contemplates that one applying for such examination shall be a soldier, such an alien, on being thus naturalized, would have to be reenlisted. Card 3366, July, 1897. The Belgian minister having applied for the discharge from our military service of a Belgian gentleman who had enlisted with a view to promotion and who desired to become naturalized accordingly-advised that considerations of international courtesy would justify the Government in consenting to his discharge and reenlistment (after naturalization) in order to enable him to qualify himself for examination under the act of 1892. 62, 186, October, 1893.

422. The act of July 30, 1892, relating to the promotion of enlisted men to the grade of second lieutenant, provides that all soldiers under thirty years of age, having certain qualifications named, may compete for promotion under the system of examination to be prescribed by the President to determine their fitness for promotion. The act further provides for an order of merit of those successfully passing the final examination, and that they shall then be appointed in that order to the grade of second lieutenant, but that this right to appointment may be taken away by sentence of a general court-martial. On the question whether the President had the power in prescribing the sysstem of examination to provide by regulation that a competitor who has obtained a place in the order of merit, shall have and retain for one year only his right to appointment when reached in that order, held,

that such a regulation was a limitation upon the right given the competitor or candidate by statute, was not authorized by the statute and was therefore invalid. Card 3305, February, 1898.

423. Sections 3 and 4 of the act of 1878, were expressly repealed by the act of June 30, 1892. The first act provided for a system of examination by which the persons mentioned therein could be recommended to the President for appointment as second lieutenants, while the second provides an arrangement for making a list of eligibles from which only, and in the order in which the names stand on the list, the President can make appointments of enlisted men to the grade of second lieutenant. Card 4044, April, 1898.

424. Held, that under sec. 3 of the Army Appropriation Act of June 18, 1878, the filling of vacancies in the army by the appointment of meritorious non-commissioned officers to the grade of second lieutenant before all the graduates of the Military Academy have been assigned, would be at variance with the law. Card 3305, June, 1897.

425. The act of July 30, 1892, relating to the appointment of enlisted men as second lieutenant specifically requires two years previous service in the army. This requirement is mandatory and cannot be waived. Card 2065, February, 1896.

426. After his discharge from the service a non-commissioned officer no longer belongs to that class of enlisted men from which, under the act of July 30, 1892, vacancies in the grade of second lieutenant may be filled after the appointment of the Military Academy graduates. Card 3577, October, 1897.

427. If an enlisted man, after having passed the final examination for appointment as second lieutenant under act of July 30, 1892, and before appointment, is, upon due examination by medical officers of the army found physically disqualified for such appointment, or an already existing physical disqualification is discovered or reported, the Secretary of War may and should withhold the appointment. Card 3577, October, 1897.

428. Held, that when a soldier holding a "certificate of eligibility" under the act of July 30, 1892, either marries or ceases to be a soldier he is no longer eligible for appointment under the act. Card 4118, May, 1898.

429. Sec. 3 of the act of July 30, 1892 (G. O. 79, A. G. O. 1892), provides that no more than two examinations shall be accorded to the same competitor." And par. 27, A. R. (30 of 1901), provides "that an applicant who twice fails in competitive examination to obtain a certificate. of eligibility as candidate for promotion cannot again compete for 1To the same effect, see opinion of Attorney General of April 7, 1898. 2 See, opinion of Attorney General of June 16, 1898.

that position." Held that the regulation correctly interprets the statute as meaning the competitive mental examination. The physical examination required is merely preliminary to the mental, and a failure to pass it does not constitute an examination within the meaning of the statute. There must be two failures to pass the competitive mental examination to render the candidate ineligible for further examination. Card 9521, January, 1901.

430. A recess appointment is not continued by a new appointment and commission during a session of the Senate; the latter is a new and distinct appointment.' Card 2805, December, 1896.

431. Held that as the Volunteer Army Act of April 22, 1898, contains no express provision for the appointment by any one of the regimental (field and staff) officers of a volunteer regiment composed of companies taken from two or more States, the President may under section 2 of Article 2 of the Constitution, appoint them. Card 4624, July, 1898. 432. Held that as there is no law authorizing the transfer of a volunteer officer as such to a lieutenancy in the regular army, the words "civil life" as used in section 5 of the act of March 2, 1899, providing for the appointment of second lieutenants in the regular army, should be construed to include officers of the volunteer army; in other words the appointment of a volunteer officer as second lieutenant in the regular army would under this section be an appointment from civil life. Cards 6024, March, 1899; 6553, June, 1899.

433. Section 7 of the act of March 2, 1899, provides that "no person in civil life shall hereafter be appointed a judge-advocate, paymaster or chaplain who is more than forty-four years of age."

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The words "civil life" as here used should be given their usual signification and therefore would not include persons in the military service as officers of the volunteer army. In construing section 5 of this act as set forth in the preceding section it was necessary to depart from the ordinary rule that words are to be taken in their usual signification, to avoid the absurd conclusion that officers of the volunteer army were, by reason of being such, ineligible for appointment as 19 Wheaton, 720, 721; 2 Opins. At. Gen., 336; 1 Fed. Rep. 104, 109; 20 Fed. Rep. 379, 382; Dig. Dec. 2d Comp. (1869), vol. 1, § 152, p. 22.

2 If a volunteer regiment is made up of separate companies or battalions contributed by two or more States, the governor of each State would be entitled to appoint the officers of the companies or battalions by them respectively contributed in a body. He would not be entitled to appoint the regimental officers to which the regiment is entitled by reason of its organization in that form. The same would apply to a battalion. If a battaliou is made up of companies contributed by two or more States, the governors respectively of each State would be entitled to appoint the officers of the companies, but the officers of the battalion as such would be appointed by the President of the United States. In all cases where appointments to such organizations are to be made by the President, the same law as to number and rank would apply that applies to regiments authorized by the laws and regulations applicable to the Regular Army. (Opin. At. Gen., July 20, 1898.)

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