The times., 1901-04-23

number on the retired list with the rank
and thrce-fouThs the sea pay of the next
higher grade as now existing. including
the grade of commander, TO cause the
aforesaid vacancies for the fiscal year
then being considered.
Soon after the law was enacted Judge
Advocate General Lemly submitted an
opinion in regard 20 the construction of
section $ holding that the forty vacancies
| must be divided specifically among the
| several grades above junior lieutenant
and that voluntary TetirementS should not
be made by beginning with the highest
/ ranking officer applying voluntarily. and
/ then the next in rank applying, and so on
/ down the list of applications lin the order
! OF the rank of the applicant until
I created.
CAPTAIN LEMLY's OPINION
The gist of his opinion, approved by
! Secretary Long, is contained in the fol-
! lowing paragraph:
! Naturally these words (above the grade
! Of commander less than thirteen, above
! the grade OF lieutenant commander less
| than twenty, above the grade of lieuten-
! ant less than twenty-nine and above the
! grade of lieutenant, Junior grade, less
/ than forty) seem 70 imply that a sufficient
number Of officers and no more. above
/ each of the grades named, are TO be placed
| on the retired list to create the prescribed
number of vacancies in each of said
grades
One of the twoprincipal objections to this
ruling Is that its application will not carry
out the direction of Congress that there
shall be forty vacancies every year. Lieu
tenants are not permitted under the law to
make application for voluntary retire
ment." Captain Lemly and the Depart
ment hold that there shall be thirteen
vacancies annually above the rank of COM
mander that is, among the captains;
seven among the commanders, the law
providing for twenty above the grade of
/ lieutenant commander, and nine among
the lieutenant commanders, the law pro-
Viding for twenty-nne above the grade of
lieutenant. LieutenanJs not being per-
mitted to apply for retirement (Voiuntary)
it would seem that under the provision
ruling that there shall be forty vacan-
cieS above the grade of junior lieutenant
would require the compulsory retirement
Of eleven lieutenants, that number being
the difference between the twenty-nine
vacancies required above the grade OF
lieutenant captains, commanders. and
lieutenant cOmmanders) and the forty re-
Quired above the grade OF Junior heuten-
ant.
But there is another provision of the
personnel law that there shall not be re-
/ tired compulsorily in any one year more
than fve captains four commanders, four
1 lieutenant commanders and two lieuten-
ants. Thus. under the Department : Tul-
ing there can only be thirty-one instead of
forty vacancies in any year unless nine
I heutenants should be dropped from the
active list on account Of death, resignation,
dismissal, or other cause creating natu-
raj vacancy. How then, some officers are
asking can the Department claim 10 have
complied with law requiring the forty
vacancies annually when II will permit
only sufficient number of retirements to
create thirty-one vacancies?
The opposition to the position assumed
by Secretary Long and Captain Lemly Is
cOntending also that the departmental
ruling is wrong in another important par
ucular. These officers claim that it will
be perfectly evident TO anyone who Will
take the trouble TO carefully read section
that there is no clause in II that pre-
sCribes particular number of vacancies
for any single grade and they call atten-
tion to the omission by Captain Lemly Of
any allusion TO very important restrict
i've clause, namely, that the vacancies are
10 be caused in the order of the rank
of the applicants"
They assert that IL is perfectly clear
that a law which states in so many words
that it shall at the end of the fiscal year
cause forty vacancies above the grade of
junior lieutenant can mean only that the
President being provided with a list of
the names of the applicants written
strictly in the order OF their rank may,
at the END Of any fiscal year. place a suf-
ficient number of applicants captains,
commanders. and lieutenant command
ers). beginning at the top name on the
list and going regularly down the list
without skipping, cause forty vacancies
above the grade of lieutenant 0unior
grade for the fiscal year then considered
A QUESTION OF CONSTRUCTS
These officers hold that Captain Lemly's
and the department ruling means that
the clause providing for thirteen vacan-
cies above the grade of commander is the
only one to be executed strictly as it
reads, that the clauses providing for
twenty vacancies above the grade of lieu
tenant commander and twenty-nine va
cancies above the grade Of lieutenant are
not to be considered as they read, and
the fourth clause providing for forty va
canCies above the grade of junior lieuten-
ant is 10 be ignored entirely. One way of
explaining the departments ruling and
the contrary view has been put into this
Suppose a general. previous to starting
his orderly on a railway journey of SO
miles should hand him written inst,uc-
q orderly, here are three purses. mark
ed No. !, No. ?, and No. 3. containing va
riOus sums OF money. In paying the ex-
penses Of your journey you must first eX-
haust the money in No. !; when you find
you have no more money in No. you
must begin spending from No. 2; when
you find you have no more money in No.
you may begin spending from No. 3. but |
you must not spend more than SO in the
first eighty-eight miles of your journey,
or more than s29 IN the first 198 miles. or
more than $40 in the whole journey OF 666 |
miles
:The orderly departs with the three
purses and after an absence OF several |
DAYS presents himself ragged ana un-
kempt, but with a Jaunty air, and reports |
70 the general:
d" Sir when ] found myself comforta-
bly, seated on the train ! opened your IN
structions and carefully read them, and |
found that your directions naturally |
seemed to imply that / could spend SO |
from No. l purse during the first SS miles |
Of my journey and 81 from No. purse |
bet tween the IS and the 1873 miles; 50 from |
No purse between the 19Sth and the |
36Sth mile. and nothing whatever between |
the 3GSth and the 66Sth mile. / opened the |
purses and spent the money as your di- |
rections seemed to imply, but of course !
could only go 36S miles on my journey and |
I had to get off the train and walk back |
10 your headquarters.
s'-The aUplicatiOn of this story to Cap
tain LemIy's opinion is found in the sub
stitution Of officers for miles the three
grades Of applicants for retirement for
the purses. and vacancies for dollars
NOT THE INTENTION OF THE ACT,
Rear Admiral CrowninsheId, Chief Of |
the Bureau Of Navigation, addressed a |
rarnonetrance to the Secretary of the |
NAVY against the department decision |
in which he pointed out that the construc- |
ton placed on section was contrary to |
the intention Of the act, and rendered il |
irnDoSsible to cause the forty vacancies |
reoliired To this Captain Lemly made a |
RESPONSE taking the ground that the only /
way in which effect can be given to the |
provision for thirteen vacancies above the |
grade Of commander is to consider that |
these expressions mean thirteen, seven, |
and nine vacancies in the grades of cap |
tain commander and lieutenant com |
uander. respectively in the order Of the |
rank Of the applicant and two in the |
grade of lieutenant and these two by |
He holds that If this mean |
ing is not given to these expressions that |
~ clauses hpEnTpa