thereby to immediately appoint Von Luettwitz a first lieutenant in the usual way, with pay to commence from the date of the act. Ibid. of $3 per cord for standard oak wood, do not extend to retired officers of the Army. Opinion of July 18, 1878, 16 Op. 93. 24. The words in that section " or an equivalent rate for other kinds of fuel, according to the regulations now in existence," are to be understood as only authorizing a sale of the quantity of other fuel for $3 (viz, 1,500 pounds of anthracite coal or 30 bushels of bituminous 25. The number and rank of the officers authorized by law to be permanently maintained in the Inspector-General's Department in the Army are fixed by the acts of June 23, 1874, chap. 458, and December 12, 1878, chap. 2, as follows: One brigadier-general, two lieutenantcolonels, and two majors. Opinion of Oct. 2, 1879, 16 Op. 638. 19. Under the act of March 3, 1857, chap. 106, Brevet Lieutenant-General Scott was entitled, when exercising command according to that rank, and then only, to the staff to which he had appointed General Hamilton; and upon the retirement of the former from active serv-coal) which, by the regulations, is made the ice, and consequent withdrawal from com- equivalent of a cord of standard oak wood. mand, to wit, on the 1st of November, 1861, Ibid. the appointment of the latter was ipso jure revoked. Opinion of Nov. 28, 1874, 14 Op. 506. 20. On the 15th of December, 1870, P., a captain of cavalry, was discharged from service, at his own request, under section 3 of the act of July 15, 1870, chap. 294, receiving a year's pay and allowances. On the 19th of May, 1876, he was appointed a second lieutenant of infantry. Held that the provisions of the second section of the act of March 3, 1875, chap. 159, do not apply; and accordingly that P. is not required to refund the pay and allowances mentioned. That section is limited to those who were mustered out as "supernumerary officers" under section 12 of the act of 1870, and who subsequently to the act of 1875 are reappointed. Opinion of Nov. 15, 1876, 15 Op. 177. II. Appointment and Promotion. 26. Under the acts of February 11, 1847, chap. 8, and July 19, 1848, chap. 104, no promotion in the Quartermaster's Department can be made from the grade of assistant quartermaster to that of quartermaster until the number of officers in the latter shall be reduced by vacancies occurring, so that the sum total of the the peace establishment of the United States. Opinion of April 21, 1855, 7 Op. 108. 21. Congress adjourned March 3, 1877, with-grade shall not exceed the statute standard of out providing for the payment of the Army subsequent to June 30 of that year. Inquiry being made whether, if the necessary funds can be furnished by individual contribution, they can properly be used for that purpose, and the Army thus supported until the next session of Congress: Advised (after reviewing the constitutional and legislative provisions bearing on the subject) that this means of paying the Army cannot properly be employed by the President. Opinion of March 21, 1877, 15 Op. 209. 22. A certificate of merit cannot be issued, under section 1216 Rev. Stat., to a soldier who applies for the same after his discharge. It is contemplated by that section that the applicant shall continue to be, at the time of the issuance of the certificate, a soldier of the United States. Opinion of May 9, 1878, 16 Op. 9. 23. The provisions of section 8 of the act of June 18, 1878, chap. 263, giving to Army officers the privilege of purchasing fuel at the rate 27. An assistant surgeon in the Army was dismissed by the sentence of a court-martial. He was subsequently nominated as assistant surgeon, and confirmed by the Senate, with a recommendation that he should take rank according to the date of his original commission. This rank would entitle him, according to the usual rules of promotion, to be appointed a full surgeon. But while he was out of the Army all the places of full surgeon had been filled by the promotion of his juniors. Hold that the promotion of the juniors was legal, and that the only benefit which the officer in question could derive from his rank was the right to be appointed a full surgeon upon the happening of the next vacancy. Opinion of April 22, 1857, 9 Op. 20. 28. The two regiments of cavalry raised under the act of March 3, 1855, chap. 169, are a distinct arm of the service, and as such reg ulate promotions therein. Opinion of March 16, 1859, 9 Op. 293. 29. The appointment of a commissioned officer is not perfected, and is entirely within the power of the President, until a commission is issued. Opinion of March 17, 1859, 9 Op. 297. can acquire only by virtue of a new commission. Ibid. 36. The second and sixth sections of said act operate to prevent the nomination for promotion of infantry and staff officers who were eligible to promotion prior to March 3, 1869, except as therein provided. Ibid. 30. By force of the act of August 6, 1861, chap. 58, Capt. Howard Stansbury, of the Topographical Engineers, became entitled to promotion to the rank of major in that corps, and should receive such promotion as of a date im-ion of May 8, 1869, 13 Op. 44. mediately following that act. Opinion of Oct. 14, 1861, 10 Op. 144. 37. The right of an individual to an office in the Army to which he has been nominated and confirmed is not a vested one until his commission has been signed by the President. Opin 31. The third section of the act of August 3, 1861, chap. 42, providing for the better organization of the military establishment, which authorizes the promotion of captains of the Army in the Quartermaster's Department to the rank of major after fourteen years' continuous service, only applies to captains who have served fourteen years continuously in the Quartermaster's Department. Opinion of Jan. 10, 1862, 10 Op. 166. 32. The President made appointments of chaplains to Army hospitals before the passage of any law authorizing them; subsequently he made known the fact to Congress, and by the act of July 17, 1862, chap. 200, section 9, the appointments of chaplains to Army hospitals theretofore made by the President were confirmed: Held that it was not necessary that the persons so appointed by the President and confirmed by statute should be again nominated to the Senate for its advice and consent. Opinion of Feb. 3, 1863, 10 Op. 449. 33. The statutes prescribing the qualifications of chaplains in the Army do not preclude the appointment of a Christian minister to the office of chaplain because he may be a person of African descent. Opinion of April 23, 1864, 11 Op. 37. 34. By the laws and regulations of the military service in force at the passage of the act of March 3, 1869, chap. 124, vacancies in established regiments and corps, to the rank of colonel, were required to be filled by promotion according to seniority, except in case of disability or other incompetency. Opinion of April 5, 1869, 13 Op. 13. 35. But these laws and regulations do not confer upon the officer next in the order of succession any right to the vacant place; this he 38. Until the commission has been signed it is within the discretionary power of the President to withhold it. Ibid. 39. Vacancies which, under section 12 of the act of July 15, 1870, chap. 294, were intended by Congress to be filled from officers placed on the supernumerary list in pursuance of the provisions of that section, comprised only such vacancies as should occur prior to January 1, 1871; hence a vacancy occurring on or after that date was excluded from the operation of the above-mentioned enactment. Held, accordingly, that where S., a colonel of infantry, was at his own request honorably discharged from the service, the discharge to take effect January 1, 1871, E., a lieutenant-colonel on the supernumerary list, was not entitled to the place thus made vacant, and was lawfully mustered out of service under an order dated January 2, 1871. Opinion of Feb. 11, 1871, 13 Op. 380. 40. Vacancies created in the Quartermaster's Department by the act of July 28, 1866, chap. 299, from above the rank of assistant quartermaster to that of colonel, were required to be filled by promotion according to seniority, except in case of disability or other incompetency. Opinion of Jan. 22, 1872, 14 Op. 2. 41. The Army Regulations of 1863, in regard to promotions in the Army, have, by virtue of section 37 of the said act, the force of law. Ibid. 42. The words "all vacancies," used therein, cannot be rightfully construed to apply to vacancies occurring in a particular way only, but they include a vacancy that arises on the creation of a new office as well as one that happens by the resignation or death of an incumbent. Ibid. 43. By section 17 of the act of July 28, 1866, chap. 299, there were allowed in the Medical Department of the Army one chief medical purveyor and four assistant medical purveyors, each with the rank and pay of a lieutenantcolonel of cavalry; and the sixth section of the act of March 3, 1869, chap. 124, prohibited any new appointments or promotions in that department until otherwise directed by law. A vacancy in the office of chief medical purveyor having occurred subsequent to the date of the last-mentioned act: Held that the provisions thereof forbid the filling of the vacancy by the appointment of one of the assistant medical purveyors thereto; that such an appointment would constitute a promotion, in view of the relative superiority of the position, and come within the statute, though it involved no increase of pay. Opinion of Feb. 24, 1872, 14 Op. 10. 44. The purpose of the act of June 8, 1872, chap. 351, is to put Nelson H. Davis in the same grade in the Inspector-General's Department, and in the same place relatively in that grade, which he would now hold and occupy had he been regularly promoted to fill the vacancy in that Department caused by the death of Inspector-General Henry Van Rensselaer on the 23d of March, 1864. Opinion of Sept. 16, 1872, 14 Op. 117. 45. That purpose will be effected by appointing him to the office of Inspector-General, to take rank next after Colonel Schriver; and this would necessarily make him (as by the statute he is entitled to be) senior in rank to Colonel Hardie. Ibid. their scope, the regulation of the appointment and promotion of officers therein. Ibid. 49. Hence, as the Constitution expressly confers upon Congress authority "to make rules for the government and regulation of" the Army, that body may impose such restrictions and limitations upon the appointing power as it deems proper in regard to promotions or appointments to any and all vacancies in the Army, provided the restrictions and limitations be not incompatible with the exercise of the appointing power. Ibid. 50. Previous to the act of July 28, 1866, chap. 299, the Secretary of War, with the approval of the President, might, by virtue of the act of April 24, 1816, chap. 69, at discretion, adopt alterations in the regulations for the Army; and the regulations thus modified had the sanction of Congress under the latter act, so far at least as they came not in conflict with the provisions of any later statute; but by the said act of 1866 this authority of the Executive to alter or modify was taken away. Accordingly, the rules which existed at the date of the act of 1866 concerning the subject of appointment and promotion in the Army became, as it were, fixed; and, having the force of law, they must be taken to control the appointing power in regard to that subject until Congress shall otherwise direct. Ibid. 51. Where an officer in a regiment has resigned, or is lawfully dismissed from the service, and his connection with the Army has thus ended, he cannot afterward be legally restored by reappointment to his former grade and po other officers then already holding commissions in the regiment, unless such reappointment is specially authorized by Congress. Opinion of Nov. 20, 1874, 14 Op. 500. 46. The claim of Maj. Absalom Baird to fill the vacancy in the Inspector-General's De-sition, if he would thereby be made to outrank partment caused by the advancement of Lieut. Col. Nelson H. Davis, under the act of June 8, 1872, chap. 351, is inadmissible; the authority to appoint conferred by that act being exhausted by the appointment of the last-named officer, and the filling of the vacancy accordingly being precluded by force of the sixth section of the act of March 3, 1869, chap. 124. Opinion of Jan. 9, 1873, 140p.164. 47. Review of the laws and regulations pertaining to appointments and promotions in the military service. Ibid. 48. It may now be considered to be definitely settled by the practice of the Government, that the regulation and government of the Army include, as being properly within 52. The reappointment in the above case is precluded by the Army Regulations, which have the force and effect of law, and which require, as a general rule, all vacancies in the regimental offices to be filled by promotion according to seniority. Ibid. 53. H., an assistant quartermaster (whose commission is junior to the commissions of twenty-two other assistant quartermasters), having served as an assistant quartermaster of volunteers from June 9, 1862, to March 22, 1867, and from the latter date as an assistant that the error be now rectified by the President by appointing him to fill the next vacancy occurring in the grade of colonel in the same corps over the three officers referred to. Advised that (upon considerations stated in the opinion) the President should treat the commissions issued to these officers by his prede quartermaster in the regular Army under his present commission, claimed to be entitled to promotion to the grade of major in the Quartermaster's Department on account of fourteen years' continuous service. An obstacle to immediate promotion being presented by section 4 of the act of March 3, 1875, chap. 126, the question is whether H. is entitled to be pro-cessors as conclusive of their right to the rank moted upon the next happening of a vacancy conferred thereby; that while those commisin said grade, the provisions of that section not sions stand he should have regard to them in being in the way: Held (1) that he is not so making promotions by seniority in said corps; entitled on the ground of continuous service; and that if S. has sustained a wrong in this (2) that under existing law the right to promo-matter Congress alone can remedy it. Opinion tion, in case of such vacancy, would be gov- of rec. 9, 1880, 16 Op. 583. erned by seniority of commission, irrespective of the past service of the officer. Opinion of July 6, 1877, 15 Op. 330. 54. C. and T., each of whom had previously served as a medical officer in the volunteer forces during the late war, were appointed to fill original vacancies in the grade of assistant surgeon in the Army, created by section 17 of the act of July 28, 1866, chap. 299, the appointment of the latter having been made in May, 1867, and that of the former in October, 1867. Held that neither C. nor T. is entitled (in the absence of a statutory provision authorizing it) to have his commission dated as of the date of the act creating the vacancies, viz, July 28, 1866. Opinion of Sept. 27, 1878, 16 Op. 614. 55. In applying section 1219 Rev. Stat. to the case of assistant surgeons who are entitled to rank as captains it is not necessary to issue commissions to such assistant surgeons as captains. The office to which they are already commissioned is that of assistant surgeon; and promotion therein (from the rank of first lieutenant to that of captain), consequent upon duration of service, results by mere operation of law, and does not require any action by the appointing power to effect it. Opinion of Jan. 24, 1830, 16 Op. 652. III. Brevets. 57. Brevet rank takes effect whenever by special assignment the brevet officer is invested with a separate command, comprising troops of different corps at a particular post. Opinion of March 27, 1823, 1 Op. 604. 58. The act of July 6, 1812, chap. 137, authorizing the President to confer brevet rank on such officers of the Army as shall have served ten years in any one grade, applies to brevet officers generally, and such as have been brevetted for gallant services. Opinion of April 5, 1824, 1 Op. 653. 59. The service actually rendered for ten years in any one grade being the ground of promotion, any officer performing it for that term, whether he holds the grade by commission or by brevet, is entitled to promotion. Ibid. 60. The ten years' service in one grade mentioned in the act of July 6, 1812, chap. 137, as given for one of the meritorious grounds for a brevet (if there be no practice to the contrary) must be a service for ten continuous years. Opinion of Feb. 20, 1828, 2 Op. 71. 61. The act authorizing the President to confer brevets is not mandatory; it is not imperDe-ative; but merely authorizes him to confer brevet rank in certain cases; and the cases are within his sound discretion to say whether the gallant actions, meritorious conduct, and the service in one grade of ten years have been sufficiently important to deserve the mark of distinction. Ibid. 56. S., an officer in the Quartermaster's partment, standing number four in the grade of lieutenant-colonel, claims that he was overslaughed by the promotion, in 1866, of the three officers who stand above him in the same grade, under an erroneous execution of the act of July 28, 1866, chap. 299 (whereby certain original vacancies in the grades of major, lieutenant-colonel, and colonel, created by that act, were filled by selection instead of by promotion according to seniority), and he asks 62. The brevet commissions issued by the President on the 28th of June, 1818, to certain persons who had distinguished themselves in the late war with Mexico, on the recommenda tion of the commanding officer of their regiment, are valid, though such persons were not non-commissioned officers at that date. Opinion of Sept. 4, 1848, 5 Op. 22. 63. The act of March 3, 1847, chap. 61, invested the President with authority to issue such brevets as a reward for the distinguished services of that class of officers, rendered in that capacity, upon certain evidence that they had thus served, whether they should retain the same rank when the reward should be bestowed, or should be transferred elsewhere to act in an humbler capacity. Ibid. 64. Under the act of April 16, 1818, chap. 64, an officer of the Army cannot get the pay of his brevet rank without showing both that he was on duty and that he had a corresponding command. Opinion of Sept. 29, 1857, 9 Op. 114. 65. Although Congress, by the act of March 3, 1839, chap. 85, declared that the act of April 16, 1818, chap. 64, should thereafter "be so construed as to include the case of the Adjutant-General of the United States," it was held that an officer who, after the passage of the said act of 1839, was Adjutant-General of the United States with the rank of brigadiergeneral by brevet, and afterward a major-general by brevet, and who had no command according to such ranks, was not entitled to receive the pay and emoluments of his respective brevet ranks. Ibid. 66. Where nominations of Army officers for promotion by brevet had been pending before the Senate prior to the date of the act of March 1, 1869, chap. 52, but were not confirmed by that body until the 3d of March, 1869: Held that, under the operation of the second section of that act, if the officers were not nominated by reason of "distinguished conduct and public service in the presence of the enemy," they could not be commissioned. Opinion of April 24, 1869, 13 Op. 31. 67. A nomination for brevet promotion, by reason of meritorious service in engagements with the Indians, is within the statute, and, consistently with its provisions, commissions might be issued to any of the officers referred to who may have been thus nominated. Ibid. 68. Such promotion, when made during the existence of Indian hostilities, is to be viewed as conferred "in time of war," within the meaning of the act mentioned. Ibid. IV. Rank. 69. Advised that the construction of the law as given by Judge-Advocate-General Holt, and since acquiesced in and followed in several instances by the War Department, be adhered to, namely: that the rank conferred by section 1096 Rev. Stat. upon the aids selected by the General of the Army thereunder entitles such aids to the precedence, when serving boards, and the like, to which the same rank upon courts-martial, courts of inquiry, military would entitle an officer of the line or staff (independent of the office of aid) when thus serving. Opinion of Aug. 11, 1880, 16 Op. 552. V. Relative Rank. 70. The period of service during which those paymasters in the Army who were selected and appointed pursuant to the provisions of the eighteenth section of the act of July 28, 1866, chap. 299, from the "additional paymasters" created under the twenty-fifth section of the act of July 5, 1838, chap. 162, served as such "additional paymasters," should not be taken into account in determining their relative rank as between themselves and other paymasters in the Army whose commissions are of prior date to theirs. Opinion of June 13, 1871, 13 Op. 441. 71. The second proviso to the thirteenth section of the act of March 3, 1847, chap. 61, by which length of service in the Pay Department, and not date of commission therein, was made to determine relative rank among paymasters, has been superseded by the first section of the act of March 2, 1867, chap. 159, which is expressly given a retrospective operation upon all appointments theretofore made under the act of July 28, 1866, chap. 299. Ibid. 72. Except as between such as have the same date of appointment and commission, the act of March 2, 1867, chap. 159, leaves the matter of relative rank to be regulated solely according to the dates of the commissions under which those officers are at the time acting. Ibid. 73. But where they have the same date of appointment and commission the matter is to be determined by length of service, computed according to the provisions of the last-mentioned act. Ibid. 74. The provision in the second clause of paragraph 5, Army Regulations of 1863, for |