Evening star. [volume] (Washington, D.C.) 1854-1972, 1889-01-19

The army retiring board that has for the past
two days been examining into the physical con-
dition of udge-Advocate- General Swain, with
a view to determining whether or not he is suf-
fering from disabilities that render him inca
pacitated for active duty, have completed their
work and submitted their conclusions to the
Secretary Of War. The board finally adjourned
yesterday afternoon, after secret discussion
Of the case, and this morning the
President. General Benet, and the recorder,
Lieut.. Chase. signed the report of the
board, and the latter placed it in the Secretarys
hands at about noon. There are various spec
ulations to the nature of the recommenda-
tions but most officers are of the opinion that
Gen. Swain will be retired. At the physical
examination on Saturday trace of '.kidney
disease" was found by the medical officers, not
withstanding Gen. Swaim's statement that in
his opinion he is a perfectly-well man. 1t is
not known whether or not this trace" was de-
veloped into unmistakable indications on the
further analysis, but those who have acquaint-
ance with the usual course of retiring boards
say that the first report was undoubtedly
verified.
THE QUESTION OF GEN. BLACKS cHANcEs|
for the judge advocate-generalship, in case
Gen. Swain is pardoned and retired, has caused
some officers to look up tire law ON the subject
of appointments in the army Some believe
that the President has the power to appoint
civilian to the place. while others hold that
Gen. Black is legally ineligible. In support of
this opinion an officer called the attention Of a
STAR reporter this morning to paragraph Is, of
the Army Regulations. which provides that:
Appointments to the rank of general officer
shall be made by selection from the army"
This regulation, with a number of others,
was made law by the act of Congress approved
July %, 1866. This would seem to be conclu-
sive, but it is current expression among army
officers that the regulations must be taken
of the Court Of Claims, however, it is stated
that ''army regulations indirectly approved by
Congress have the absolute force of law equally
with Legislative acts, until they are repealed by
the same power. Congress so treated them in
the act of June 8, 1872, wherein it is provided
that section 8 Of the act Of May 8, 1872, should
not be held to repeal paragraph 1880 OF the
army regulations, thus recognizing the regula-
tions approved by Congress in the year 1856 az
the same force as enact
these authorities to the reporter, the President
will be restricted to the army in his selection
Of q successol to Gen. Swain.
rHERY Is SOME MORE Law
on the subject that ID interesting. Section
1888 of the Revised Statues Gan act Of 1860
says: ''The acknowledgement, the quarter
master-general the commissary- general OF
Subsistence. the chief OF engineers, the sur
geon general, the chief of ordnance and the
paymaster-general shall be appointed by uelse-
ton from the corps TO which they belong"
Thus it will be seen that the judge-advocets.
generalship, though usually nllcd by the pro-
motion o q member Of the corps, may be 6lled
from the line Of the army. Notwithstanding
the regulations and the decision Of the Court
Of Claims already quoted, there many officers
who believe that this paragraph Of the Re-
vised Statutes, in omitting TO name the judge
advocate-general, permits the President 70 sp-
point = civilian to the position.
President johnson appointed Lewis D. Roe
eeau, then civilian, 70 be . bFigadisg general
In the army In 1867, and the nomiuaSIon was
confirmed BY the Senate.
GEN. swA1xis nxfn1M1xI.
In case the verdict of the retiring boasd b
that Gen. Swain h incspaoitAtsd fos sotivs
service IRON disabilities incurred sithss II q
out Of his limo Of duty, u Will BE- within NJ
power Of the President - place hin On ~ ~
tired hst after arst pardonlng Mn. 0ne e ~
boards report \ 70 The ezeoct thAt Gen. Swain
= not incapsoitatsd. the Iresfdent VIII -
poverless 70 retire hin. - oan, e eoslses,
pardoa him - any tlnas