Evening star., 1901-02-25
Appointed by the President and
Subject to His Orders.
7 E X 7 OF FIN NDIN G S

AASo Aii tHC IldtlcI anu dppcdltu Ills Case
to the War Department. In one phase or
another it has been pending there ever
since.
Early in February last the Secretary OF
War referred all the papers in the case to
the judge advocate general of the army
for an opinion on the legal questions in
volved. The opinion of the judge advocate
general was submitted to him about two
weeks ago. and acting in conformity there
with the Secretary has directed Colonel
Mays restoration to duty. 1t is understood
in order to determine whether Colonel May
should or should not have command of his
regiment during the inaugural parade.
Report of Judge Advocate General.
The report Of Judge Advocate General
Lieber of the army to the Secretary of
War was under date Of February A. and
related that Col. Henry May, National
Guard District of Columbia, by his attor-
ney, William F. Mattingly. submitted a brief
in which he contended that certain regula-
tons, approved by the President for gov
erning the appointment and procedure of
boards of examination to examine commits
stoned officers of the National Guard of
the District Of Columbia were Illegal and
void; that the composition of the board
was illegal and that the board had no ju-
risdtction to examine a colonel as to his
professional qualifications. The regulations
referred to were given in full
Appointment of Boards.
Proceeding. the judge advocate said:
The authority for the appointment Of
boards is derived from section "a Of the
act approved March 1, 1889 (25 Stat. 772),
which is as follows:
Sec. "a. That a commissioned officer
may be honorably discharged
Upon the tender of resignation.
hl nd of fha pizofi ion,
to which he belongs
Upon report of board of examination
or for failure to appear before such board
when ordered.
of court-martial; conviction in court of
justice Of an infamous offense.'
'1he regulations quoted We're issued un-
der section 62 of the act, which provides: &
Sec 62. That the commanding general,
subject to the approval of the commander
in-chef. is authorized to make and publish
regulations for the government of the mill
tia in all matters not specifically provided
Tor by law, conforming the same to the
practice and regulations of the army so
lar AS they may be applicable.'
Section 24 Not Applicable.
Section "a defines the conditions under
which commissioned officers of the Ma
tional Guard of the District Of Columbia
may be discharged. one Of them being
Upon report of a board Of examination,
or for failure to appear before such board
when ordered No such discharge Is now
legal in the United States army, save as to
volunteer officers. and 1t is, therefore, not
applicable as precedent in this case. That
statute does not state that it is an exam
naton to determine fitness for promotion,
but a condition by which commissions
ed officers may be honorably discharged
There is therefore no practice or regula-
ton Of the army applicable. The regula-
ho mo
those now In force in the army for exam
ination of officers for promotion. The stat
ute under consideration is silent as to how
such board shall be appointed or the scope
of the examination intended, and, being
matter not specifically provided for by
law. 1t becomes a proper subject for regu-
lations issued under section 62 Of the act
cited.
Rule of Trial by Seniors.
Neither the wisdom of having section
"a in force in the militia, nor the absence
Of such a law for the army. has any bear
ing on the determination of the meaning of
the law. Under section "a there may be no
necessity to prescribe allow the profess
sional examination of any officer. 1t could
be limited to physical examination. The
regulation, however, does prescribe a re-
port upon physical moral and professional
fitness, and, in my opinion, is a lawful
regulation under the act.
Neither the law nor the regulations pre-
scribe what grades Of officers shall be or
dered before the authorized boards. There
is therefore no limitation in that respect.
''The regulation prescribeS that the men,
bers of the board shall, if practicable, he
senior in rank to the officer examined ;
Objection was made to the constitution of
the board on the ground that the members
were junior In rank to Col. May. This pro-
vision of the regulation is similar to that of
the seventy-ffth article of war, which pro-
vides that a general court-martial Shall
not consist of less than thirteen when that
number can be convened without manifest
injury to the service In reference to this
1t was held at an early period by the
United States Supreme Court that it was for
the convening authority to determine what
number of officers could be detailed without
manifest injury to the service. and that his
decision the subject would be con-
elusive. Oig. opin J. A. G., par. 8. page
IS; Martin " Mott. 12 Wheaton, 34-3O. So
in this case 1 am Of the opinion that this
rule would be applicable. Although 1t would
be a proper subject for consideration by the
President whether the recommendation of a
board, constituted as this one was. should
be acted upon and followed
No Authority for the Action.
'It appears from the brief that Col. May
was suspended by the commanding general
Of the militia Of the District of Columbia
from the exercise of his office as colonel as
early as April "a. 1900. In reference to this.
the IactS are not set out, except III
the case Of arrest or physical disability, I
know Of no authority for such action.
"Col. Mays attorney fails in his brief to
raise the question of the jurisdiction of the
board, due to lack Of competent orders TO
examine Col. May. The regulations under
consideration do not state who Is competent
to order an officer before such board, nor Is
there any statute on the subject The stat
ute makes the President the commander-!n-
chief Of the militia of the District Of Colun-
bia, and, the officer being appointed by him.
it is reasonable view that he must deter
mine whether the officer should be so exam
ined with a view to discharge. If this Is
correct, the commanding general of tha
militia Of the District of Columbia was
without authority to direct Col. May to ap-
pear before a board to determine his fitness
to hold his commission.
"In the army 1t is recognized that the
Secretary of War. the representative of the
President, is the proper person to order an
officer before a board for examination for
promotion. This. Notwithstanding the con-
vening Of boards, Is sometimes delegated to
a subordinate commander. The same au-
thority directs officers to appear before re-
firing boards.
'I am Of the opinion. therefore, that the
board had no jurisdiction to examine Col.
May, against his objection in the absence
of onv direction from the Pracidapf tbof