determining the rank of officers of different regiments or corps whose commissions are of the same date and grade, which reads, "2d. By former rank and service in the Army or Marine Corps," considered and construed. Opinion of Dec. 15, 1877, 15 Op. 411.

75. The word "Army," as there employed, is to be understood as embracing the entire military forces of the United States, whether regular or volunteer. The word "service" does not mean service in all capacities, but service in the former rank, i. e., as a commissioned officer. Ibid.

76. Accordingly, where the former service of two officers was in different grades (whether in the regular or volunteer army), the one who served in the higher grade is entitled to the superior rank; where both officers hold the same grade, the one who served the longer in that grade is to be preferred. Ibid.

77. On the 9th of October, 1867, C. was appointed to fill an original vacancy in the grade of assistant surgeon in the Army, under the provisions of section 17 of the act of July 28, 1866, chap. 299. He accepted the appointment October 14, 1867. Having previously served as a medical officer of volunteers for more than three years, his appointment entitled him under the same provisions to the rank of captain, and he was accordingly noted as of that rank on the Army Register. Held that the relative rank of C. with other assistant surgeons in the medical corps must be determined by reference to the rank conferred by his appointment (which is that of captain) and the date thereof, and not by reference to the date of his appointment as assistant surgeon, irrespective of the rank conferred thereby. Opinion of June 6, 1878, 16 Op. 605.

ant, without reference to the date of their entry into service as assistant surgeons. Opinion of July 2, 1878, 16 Op. 56.

79. The subject of rank, as between those holding the office of assistant surgeon in the Army, and what effect, in determining such rank, is to be given to the former service of assistant surgeons who, previously to their appointment, had served three or more years in the volunteer medical department (all of which is discussed in opinions of June 6 and July 2, 1878, 16 Op. 56, 605), reviewed, and the doctrine of those opinions reaffirmed. Opinion of Jan. 24, 1880, 16 Op. 652.

VI. Transfer of Officer.

80. Lieutenants in the artillery and Marine Corps may be exchanged, with their own assent, where the ranks of other officers will not be interfered with or prejudiced; but such exchanges can be effected only by the action of the appointing power of the President, by and with the advice and consent of the Senate; and will not be made unless the good of the service requires it. Opinion of June 28, 1830, 2 Op. 355.

81. G., while holding a commission as second lieutenant of infantry, dated March 7, 1867, and being on the list of unassigned officers created under the provisions of the act of March 3, 1869, chap. 124 (which affected infantry regiments and the officers thereof only), received and accepted a commission as second lieutenant in the Fifth Cavalry, to rank from July 14, 1869, the date of his transfer to that regiment, and has since been promoted in ordinary course to a first lieutenancy therein. Before accepting his first commission in the cavalry he remonstrated against the refusal of the War Departmant to rank him according to the date of his commission in the infantry. Held that, on being transferred to the cavalry, G. was not entitled to take rank from the date of his commission in the infantry, but from the

VII. Resignation.

82. A valid resignation of a military officer, followed by an unconditional acceptance of it. operates to remove the incumbent, and a new appointment is required to restore him to the office.

Opinion of Feb. 10, 1869, 12 Op. 555. 83. The opinions of Attorney-General Cushing and Attorney-General Bates (see 6 Op. 456, and 10 Op. 229) to the effect that, on general principles of law, the resignation of an officer while insane is to be deemed void, and that, although it may have been accepted without knowledge of the insanity, the acceptance can be recalled and the officer reinstated without a new appointment, reaffirmed; subject, however, to the following qualifications, viz, that the Executive Department, after having accepted the resignation, has done no act which prevents the restoration of the statu quo with

out impairing or prejudicing the rights of other officers acquired in consequence of such act. Opinion of March 22, 1878, 15 Op. 470.

84. Where a resignation of an Army officer has been tendered and accepted without any thing more, and a question of insanity afterwards arises, it is competent to the War Department to hear and consider evidence upon the question, and decide and act accordingly.

Ibid.

85. But where, after acceptance of the resignation and without knowledge of the insanity, the place of the officer has been filled by appointment of another thereto, the resignation

must be regarded as effective. Ibid.

VIII. Holding Civil Office.

86. The provisions of section 18 of the act of July 15, 1870, chap. 294, prohibiting Army officers on the active list from holding any civil office, extend to State offices as well as to offices under the United States, and to those offices for which no compensation is provided as well as to those for which compensation is allowed. Opinion of Aug. 10, 1870, 13 Op. 310. | 87. In view of the eighteenth section of the act of July 15, 1870, chap. 294: Held that General William T. Sherman cannot act as Secretary of War without vacating his commission as General of the Army. Opinion of March 24, 1873, 14 Op. 200.

tain to it being defined by certain acts of the Ohio legislature, and appointments thereto and removals therefrom being made by the judges of the superior court of the city of Cincinnati, by which court the compensation of the trustee is also fixed-is a civil office within the meaning of section 1222 Rev. Stat., and, therefore, upon

acceptance of an appointment to such trusteeship by an officer of the Army his commission in the Army would become vacated. Opinion of March 25, 1876, 15 Op. 551.

89. A retired officer of the Army does not vacate his commission by accepting a civil office, unless it be an office in the diplomatic or consular service, in which latter case he is to be

regarded as having resigned his place in the Army. From the general law applicable to such case (contained in section 1223 Rev. Stat.), a certain class of retired officers described in

the act of March 3, 1875, chap. 178, are excepted. Opinion of June 11, 1877, 15 Op. 306.

90. He is not precluded from holding a civil

office that does not belong to the diplomatic or duties of a civil office which he may lawfully consular service. And when he performs the hold, under and by virtue of an appointment to such office, he is entitled to draw his pay as for the civil office during the period of his ina retired officer and also the salary provided cumbency of the latter office. Ibid.

91. In 1870, B., a retired officer of the Army, was appointed to and accepted the office of consul-general at London. Since his appointment

his name has been borne on the Army Register as a retired officer, but he has not received pay as such. He is not of the class of retired officers described in the first proviso of section 2 of the act of March 3, 1875, chap. 178: Held, upon consideration of the provisions of sections 1094 and 1223 Rev. Stat. (the latter section embodying so much of section 2, act of March 30, 1868, chap. 38, as related to officers of the Army), together with section 2 of the act of 1875 aforesaid, that B. has ceased to be a retired officer of the Army by effect of the statutory provision embodied in said section 1223, and that his name cannot legally be continued on the retired list. Opinion of Dec. 11, 1877, 15 Op. 407.

92. Section 1222 Rev. Stat. does not forbid the detail by the Secretary of War of an officer of the Army on the active list for duty on the Geological Survey, under the Interior Depart

But such detail would come within the

prohibition of section 1224 Rev. Stat., should it require the officer to be separated from his company, regiment, or corps, or should it otherwise interfere with the performance of his military duties proper. Opinion of May 21, 1880, 16 Op. 499.

that officer was effectually dismissed from the military service by the general order issued from the Adjutant-General's office on November 30, 1863. Opinion of June 16, 1868, 12 Op. 421.

100. Semble that section 17, act of July 17, 1862, chap. 200, in so far as it authorized dis

93. A paymaster having been reported by the Paymaster-General to have failed in making quarterly reports according to the act of 31st of January, 1823, chap. 9, and having been dismissed from office by an order from the office of the Adjutant-General, purporting to have been issued by order of the President, and his place having been filled by another, is effectually and legally dismissed from the Army as paymaster, although the President has not issued any order of dismissal under his sign manual. Opinion of Feb. 17, 1828, 2 Op. 67. 94. The proviso to the third section of the act of 31st of January, 1823, chap. 9, concerning restorations in certain cases, does not reach the case of an officer who has been actually dismissed, but is confined to those who, being in default, shall, before their dismission, account therefor to the satisfaction of the President. Ibid.

95. The President may cause a military or naval officer to be stricken from the rolls without a trial by a court-martial, notwithstanding a decision in his favor by a court of inquiry ordered for the investigation of his conduct. Opinion of Feb. 11, 1842, 4 Op. 1.

96. An officer in default cannot save himself from dismissal by rendering quarterly accounts. He is required not only to account, but to pay, and a default in either subjects him to dismissal. The decision of the President in such cases is final. Opinion of April 8, 1850, 5 Op.

234.

97. Military storekeepers are subject to removal from office at the discretion of the President of the United States. Opinion of March 26, 1853, 6 Op. 4.

98. The President of the United States possesses nstitutional power to dismiss officers

of the Army or Navy coextensive with his power to dismiss executive or administrative officers in the civil service of the Government. Opinion of Dec. 10, 1856, 8 Op. 223.

service, was declaratory only of long-established law, and that the force of the provision is found in the word "requested," by which it was intended to re-enforce strongly this power in the hands of the President at a great crisis. Opinion of Jan. 8, 1878, 15 Op. 421.

101. In January, 1863, M., then colonel of a regiment of Wisconsin volunteers in the military service of the United States, was by order of the President dismissed the service without trial. In October, 1863, the President issued the following instructions: "Let the order dismissing Colonel M. be revoked, and he ordered to report to General Grant, as above advised, with the modification that the ordering a courtmartial be in the discretion of General Grant." In November, 1863, these instructions were returned to the President by the Secretary of War with the information that the restoration of M. to the command of the regiment, his successor having already been appointed and mustered in, was impracticable; and the President took no further action in the case: Advised that it is not now competent to the Secretary of War to publish the said instructions of the President, and, in execution thereof, to grant M. an honorable discharge as of the date of the muster-in of his successor. Opinion of Feb. 12, 1878, 15 Op. 659.

102. H., a major of infantry, was dismissed from the Army, without trial by court-martial, in July, 1863, by order of the President. In April, 1878, he made application for trial by court-martial under the provisions of section 1230 Rev. Stat. Held that the phrase in that section, "any officer dismissed," is prospective only in its meaning, and that H. is not entitled to a court-martial. Opinion of May 29, 1878, 16 Op. 599.

X. Restoration of Lost Rank.

cluding seniority, to an officer of the Army or Navy. Opinion of Dec. 10, 1856, 8 Op. 223.

XI. Allowances to Officers.

104. The act of April 24, 1816, chap. 69, authorizing certain charges for forage for horses, and also for pay, rations, and clothing for servants, to be made by certain officers, is prospective in its operation, and refers only to the act of 3d March, 1813, chap. 52, for a standard to govern the subject in future. Opinion of April 30, 1821, 1 Op. 468.

105. The allowance of fuel and quarters to officers of the Army is founded on a regulation of the Department of War, sanctioned by an appropriation by Congress. The Surgeon-General is entitled to the same allowance. Opinion of June 30, 1821, 1 Op. 475.

106. A judge-advocate is entitled to compensation for extra expenses in traveling and sitting as judge-advocate, and to special compensation for clerical services, under the twentyfirst and twenty-second sections of the act of 16th March, 1802, chap. 9. Opinion of Aug. 20, 1823, 1 Op. 618.

107. The per diem allowance made to officers for traveling expenses by section 22 of the act of 16th March, 1802, chap. 9, is confined to officers traveling to and from courts-martial, and cannot be paid to those who are traveling on other business. Opinion of March 23, 1825, 1 Op. 708.

108. A lieutenant, being a subaltern in the Army, and not in the performance of any staff duty, is entitled, by the act of 2d March, 1827, chap. 42, to an additional ration. Opinion of June 30, 1829, 2 Op. 213.

109. Extra rations are properly issuable to officers commanding at posts, in the ordinary military acceptation of that term, and to those to whom, by special order of the President, they have been or may be directed to be issued. Opinion of July 18, 1829, 2 Op. 223.

110. Both the Surgeon-General and Paymaster-General are entitled equally to allowances for fuel and quarters. Ibid.

111. A general officer of the Army cannot draw a back allowance for fuel and quarters, where, during the time for which he seeks such allowance, he received double rations in lieu thereof. Opinion of Dec. 4, 1829, 2 Op.

303.

112. Lieutenants in the receipt of extra pay for staff duties are not entitled to the additional ration allowed by the act of March 2, 1827, chap. 42. They are entitled to only three rations per day when in the performance of ordinary duties, and six when in command of a post, with a right to double rations. Opinion of April 17, 1834, 2 Op. 638.

113. Officers of the Army acting as Indian agents, who shall be employed in the removal of Indians, may, notwithstanding the act of March 3, 1835, chap. 26, be allowed their actual traveling expenses. Opinion of March 7, 1835, 2 Op. 702.

114. Certain acts of Congress, when construed together, authorize the continuance of allowances for quarters, fuel, and transportation, agreeably to estimates and the former usage. Ibid.

115. The practice of commuting for quarters and fuel is only a particular mode of ascertaining the amount of the proper allowances for these objects, adopted from a regard to convenience and economy; and, as it is still authorized by law, there is no objection to the continuance of this method of settling it. Ibid.

116. The extra compensation and allowances given by the regulations in force at the time of the passage of the act of the 3d of March, 1835, chap. 26, were authorized by law. Opinion of April 16, 1836, 3 Op. 84.

117. The eighth section of the act of 2d March, 1821, chap. 13, was enacted as a permanent provision; and, as it has never been repealed nor abrogated, is yet in force. Ibid.

118. The payment of Army contingencies is authorized by law; and, as Congress has not defined in the law itself what those contingencies are, the Secretary of War must be admitted to possess a very liberal discretion on the subject. Ibid.

119. If allowances made by the Secretary of War prior to the 3d March, 1835, to officers of the Army, from the appropriation for Army contingencies, were really for contingencies, they were authorized by law. Ibid.

120. The fifth section of the act of 4th July, 1836, chap. 356, does not include the double rations heretofore allowed by the regulations. The word compensation" is synonymous with " 'pay," and does not include rations. Opinion of Oct. 24, 1836, 3 Op. 152.

121. Regimental quartermasters of the dia

goons, artillery, infantry, and riflemen, respectively, are entitled to forage for two horses, by section 4 of the act of 11th February, 1847, chap. 8. Opinion of Oct. 27, 1851, 5 Op. 406.

122. An officer on the duty of awaiting further orders is to be regarded as under orders, in the line of duty, and is entitled to commutation for quarters and fuel under the general Army regulations. Opinion of July 27, 1859, 9 Op. 376.

123. The War Department erred in disallowing the claim of Colonel Gates for servants and forage for the months of August, September, October, and November, 1861, under the twentieth section of the act of August 3, 1861, chap. 42. Opinion of Aug. 26, 1864, 11 Op. 70.

124. Under the act of July 15, 1870, chap. 294, the allowance to officers in the Army of fuel and quarters in kind for their servants is still authorized to be made. Opinion of May 6, 1871, 13 Op. 417.

125. The same act, however, does not authorize transportation in kind for such servants to be furnished at the expense of the United States, or reimbursement in money to the officers for the cost thereof. Ibid.

126. An officer of the Army, while on leave of absence from his command, in October, 1870, was ordered to serve and did serve on a courtmartial; and the court, having adjourned sine die before the expiration of his leave, he immediately returned to his command: Held, first, that the officer is not entitled to per diem compensation for his service on the court-martial, such allowance being prohibited by the act of July 15,1870, chap. 294; and, second, that he is not entitled to mileage from the place where the court met to the place where his command was stationed, as at the time he was not "an officer traveling under orders," and not within the provisions of the twenty-fourth section of that act allowing mileage. Opinion of Sept.9, 1871, 13 Op. 526.

127. Paragraph 900 of the Army Regulations of 1863 applies to officers who, at the adjournment of the court,should be at post or duty but for the engagement at court, and not to officers who, for the time being (as is the case with officers on leave), have no such post or duty. Ibid.

128. The additional allowances for subsistence provided for by section 4688 Rev. Stat. can legally be made to officers of the Army or Navy

while employed on coast-survey service. Such allowances are not within the prohibition made by the final clause of section 4684 Rev. Stat. Opinion of May 23, 1877, 15 Op. 283.

129. A military post or station, where there are public quarters for officers, but such quarters are insufficient for the accommodation of all the officers there, is, in regard to those officers who are necessarily excluded from the public quarters, a place where there are no "public quarters" within the meaning of the proviso in section 9 of said act, and commutation for quarters may be allowed to the officers thus excluded. Opinion of Aug. 7, 1878, 16 Op. 611.

130. The act of July 29, 1876, chap. 239, taken in connection with section 24 of the act of July 15, 1870, chap. 294, continued to Army officers on leave of absence (during the period for which such leave may be granted to them thereunder "without deduction of pay or allowance") quarters in kind, but it did not authorize an allowance of commutation therefor. Opinion of Jan. 16, 1879, 16 Op. 619.

131. Where commutation for quarters is allowable to Army officers under section 9 of the act of June 18, 1878, chap. 263, it may include commutation for quarters for their servants, agreeably to the existing Army regulations. Ibid.

132. Where an officer of the Army, to whom leave of absence "without deduction of pay or allowance" has been granted under the act of July 29, 1876, chap. 239, is at the time he takes his leave entitled to an allowance of commutation for quarters under section 9 of the act of June 18, 1878, chap. 263, such allowance is, by force of the former act, continued to him whilst he is absent on leave for a period not exceeding that for which the leave was granted thereunder. Opinion of January 16, 1879 (16 Op. 619), explained. Opinion of Nov. 15, 1880, 16 Op. 577.

XII. Pay Accounts of Officers.

133. The Secretary of War may properly issue an order authorizing paymasters of the Army to make a certificate upon the pay accounts of officers in the following form: "The within account is believed to be correct, and would be paid by me if I had public funds available for that purpose." Such certificate would not come under the prohibition of sec