II. PROPOSED LEGISLATION PROVIDING FOR THE RESTORATION, &C., OF DISMISSED OFFICERS, AND REFERRED TO THE JUDGE ADVOCATE GENERAL FOR REMARK.

6. Upon a Bill, by which it was proposed to restore a dismissed officer to the army by declaring his 'record amended so that he should appear to have been continuously in service,'-remarked that such Bill was not in a usual or proper form for effecting the object designed; that the obliteration of the record of an officer's dismissal on the books or rolls of the War Department would be wholly inoperative per se to reinstate the officer; moreover that the legislative department of the government was without authority to restore such an officer to the army but could only authorize his restoration by the appointing power. XXXVI, 216.

7. Upon a Bill which authorized the Secretary of War to give an "honorable discharge" to a dismissed officer, as of the date of the order of the President approving the dismissal,—remarked that as this officer had, by his dismissal, been completely separated from the army and had become a civilian, he could not be discharged from the army, without being readmitted to it, and that he could not be so readmitted without a new appointment, (see DISMISSAL, I § 6;) further that while the Bill might possibly be construed as authorizing the Executive to reappoint the officer, such construction would be a forced and unnatural one, the Bill, as it stood, being really repugnant to the provisions of the Constitution in regard to appointments,-and that it would therefore be preferable that the Bill should be so amended as simply and directly to authorize the appointment of the officer according to the approved precedents of legislation in such cases. XXXVIII,

59.

8. Upon a Bill in which the "Secretary of War" was authorized and directed to restore a dismissed officer to the rank of Captain as of the date of his dismissal,-remarked that while such Bill, if enacted, might, in order to give it a legal effect, probably be deemed sufficient to confer upon the Executive an authority to exercise the appointing power, yet that the

There was subsequently substituted for this Bill one authorizing the appointment of the officer in the usual manner, which became an Act. But see, in this connection, the opinion of the Atty. Gen. in a similar case in XIV Opins. 448.

same was in terms inadmissible and tended to establish a bad precedent, and would therefore preferably be amended, so as to conform to the usual and proper course of legislation in such cases. XXXVIII, 61.

9. Where an Act of Congress authorized the President "to restore" a person, described as late a paymaster of the army, "to the Army Register, for the purpose of being placed on the retired list,"-held that this enactment, though inaptly expressed, might properly be construed as intending to exercise the power conferred upon Congress by Art. II, Sec. 2, par. 2, of the Constitution, of vesting "in the President alone" the appointment of an "inferior" officer; and therefore that a simple appointment by the President of this officer, without any nomination to or confirmation by the Senate, (followed by his retirement by the President with the rank of major,) would be a legal and constitutional exercise of authority, constituting as valid and effectual an appointment and reinstatement as if the officer's name had been, in the first instance, sent to the Senate and favorably acted upon, and a commission had thereupon been issued to him. XLII, 178. And similarly held in a case in which, by Act of Congress, the President was "authorized to reinstate” a “major, late of the United States Army, and to retire him in that grade as of the date he was previously mustered out; and remarked that such construction was especially justified in a case like the present, where-as gathered from the reports of the Committees of the two Houses, upon the recommendation of which the Act was passed-the evident intent was simply to have reinstated in his former position an officer who had been displaced from the same through injustice or error. XLII, 196. [See APPOINTMENT § 3.]

10. In the case referred to in the last paragraph the Act, (as above cited,) authorized the reinstatement of the officer "as of the date he was previously mustered out, charging him,"

1

This bill did not become law, but there was subsequently passed an Act authorizing the President, in his discretion, to appoint the officer, with the concurrence of the Senate.

See the concurring decision of the Court of Claims in this case-Collins v. United States, 14 Ct. Cl. 568; the Solicitor General, however, in a previous opinion of April 10, 1879, (XVI Opins. —,) having held contra.

as it was added, "with all extra pay and allowances paid him at that time." Held that this officer, upon his reinstatement, was entitled to the pay of a major from the date of his muster out, (under the Act of July 15, 1870, less the extra "one year's pay and allowances" then paid him in accordance with the provisions of sec. 12 of the same. XLII, 192–193.

11. An Act of Congress, in declaring in substance that an officer was unjustly and erroneously mustered out of the service in January 1871, proceeded to authorize the President "to restore him to his proper rank and promotion in the army with directions to the Secretary of War, on account of his disabilities incurred in the line of duty, to place him on the retired list." The officer, had he not been mustered out, (as a captain,) would have attained the rank of major on Dec. 10, 1873. Held, on construing this Act in connection with the emphatic favorable reports upon the case of Committees of the two houses of Congress, that the intent of the Act clearly was to reinstate completely this officer so far as his rank was concerned, and that the President was therefore authorized, (by appointment without the concurrence of the Senate-see § 9,) to restore the officer to the army as a major with rank from Dec. 10, 1873, and thereupon to cause him to be placed upon the retired list as an officer of the army of this rank. XLII, 246.

12. An Act of Congress required the Secretary of War to order a court martial or court of inquiry "to inquire into the matter of the dismissal" of a certain officer who had been summarily dismissed by the President in 1863, and further empowered such court "to confirm or annul the action" by which he was dismissed, adding that its "findings" should "have the effect of restoring" the party "to his rank with the promotion to which he would be entitled if it be found that he was wrongfully dismissed, or to confirm his dismissal if it be otherwise found." Under this Act the Secretary of War ordered a court of inquiry which found that the officer had been "wrongfully dismissed," and declared the dismissal to be a nullity. The Act and record of the court hav

1

This opinion was also concurred in by the Court of Claims in a second decision in the same case, United States v. Collins, 15 Ct. Cl. And see the similar conclusion, as to the right to pay, of the Solicitor General, in opinion of April 10, 1879, (XVI Opins —.)

1

ing been referred by the Secretary of War to the Judge Advocate General for opinion as to the executive action proper to be taken, if any,-held that the only manner in which a dismissed officer, or other civilian could be admitted to the army was by an appointment made pursuant to the provisions of Art. II, Sec. 2, par. 2 of the Constitution; that Congress was not empowered to appoint a civilian as an officer of the army, or to authorize a military court to make such an appointment; that the Act, in authorizing the restoration of the officer by and upon the favorable finding of the court, was clearly unconstitutional and inoperative; further that no implied authority for an appointment of the officer by the Presi dent could properly be gathered from the Act. And addedthat the principle of that extreme instance of a liberal construction of a statute in favor of the exercise of the appointing power presented in the opinion of the Attorney General in the case of Lieut. Von Luettwitz, (XIV Opinions, 448,) could not be extended to the present case, since by this Act the function of the executive department was in terms confined to the ordering of the court; the authority to appoint, so far as any was conferred, being expressly reserved by Congress to itself, or rather to the court. XLII, 297.

STEALING.

SEE LARCENY.

STENOGRAPHER.

SEE REPORTER.

1A military court, being no part of the U. S. judiciary, (see COURT MARTIAL, I § 1,) is of course not included in the "courts of law" to which a power of appointment of "inferior" officers is authorized to be given by Art. II, Sec. 2, par. 2, of the Constitution. Moreover this power, as interpreted by the authorities, properly extends only to the appointment, by the U. S. Courts, of their own inferior officers, such as clerks, reporters, or bailiffs. See IV Opins. of Attys. Gen. 164; XÍ Id. 213; Ex parte Hennen, 13 Peters, 258; Story's Com. on the Const. § 1536.

This conclusion, however, was not accepted, and the appointment was made and confirmed.

STOPPAGE.

1. The pay of an officer or soldier cannot be subjected to stoppage except by the authority of a statute or regulation specifically authorizing the same or of a sentence of court martial imposing a forfeiture or fine as a punishment, or where the party has become indebted to the United States on account. In a case of supposed liability to stoppage, resulting from a neglect or an act chargeable as a military offence, and as to which the facts are disputed, it is in general preferable to have the case investigated and the actual pecuniary liability, if any, fixed by a trial by court martial. XXX, 293; XXXIII, 445. A superior is not authorized to stop against the pay of an inferior the value of property charged to have been criminally misappropriated, (III, 628; XXI, 139;) and it is the experience of the Judge Advocate General that most or many of the cases of loss of or injury to public property in which the facts have been investigated and the damage assessed by boards of survey, would have been more profitably passed upon by courts martial, by which, instead of a stoppage, a forfeiture could have been imposed, as a punishment, by sentence. XXX, 293; XLIII, 217.

2. The United States is not authorized to stop against the pay of an officer or soldier an amount of personal indebtedness to another officer or soldier, though such indebtedness may have grown out of the relations of the military service. Thus, in the absence of a sentence of court martial forfeiting the same, an officer's pay cannot legally be stopped with a view to the reimbursement of enlisted men who have deposited with him money for safe keeping, which he has failed to return when required, the officer being accountable for the same in a personal capacity only. XII, 510; XVI, 637.

3. Held that for a liability incurred upon a first enlistment, a soldier could not legally be subjected to a stoppage against the pay due him upon a second enlistment; the latter being a separate and independent contract between the man and the government, the right to the consideration money due upon which, (as fixed by statute,) could not be any more sub