The times. [volume] (Washington [D.C.]) 1897-1901, 1901-04-23

! the President may, in the order of the
rank of the applicants place a sufficient
! number on the retired list with the rank
| and thrce-fouuhs 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 Leiniy submitted an
! opinion in regard to the construction of
| section 5, holding that the forty vacancies
| must be divided specifically among the
| several grades above junior lieutenant.
and that voluntary retirements 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 a
created.
CAPTAIN LEMLY's OPINION.
The gist of his opinina, 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 leuten-
ant less than twenty-nine and above the
than forty seem 10 imply that 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 two principal 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
=gsgs A..
lieutenant commander. and nine among
the lieutenant commanders. the law pro-
vding for twenty-nine above the grade of
lieutenant l.ieutenants not being per-
mitted to apply for retirement (voluntary)
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 lieuten-
ant.
But there is another provision of the
personnel law that there shall not be re-
tired compulsorily in any one year more
than five captains. four commanders, four
lieutenant commanders, and two lieuten-
ants. Thus. under the Departments rul-
ing, there can only be thirty-one instead of
forty vacancies in any year unless nine
neutenants should be dropped from the
active list OH account of death, resignation,
dismissal, or other cause creating natu-
raj vacancy. How then, some officers are
asking. can the Department claim TO have
complied with a 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
ifrtla of latf hat vyiil
be perfectly evident to anyone who will
take the trouble TO carefully read section
that there is no clause in 1t that pre-
scribes a particular number Of vacancies
for any single grade and they call atten-
ton to the omission by Captain Lemly of
any allusion TO a very important restrict
i've clause namely, that the vacancies are
to be caused Tin the order of the rank
of the applicants"
They assert that IT is perfectly clear
that a law which states in so many words
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-
hcient 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 Ounior
grade for the fiscal year then considered.
QUESTION OF CONSTRUCTION.
These officers hold that Captain Lemly's
and the departments 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 to be ignored entirely. One way of
explaining the departments ruling and
the contrary view has been put into this
form:
Suppose general. previous to starting
his orderly on railway journey of 55S
miles, should hand him written instuc-
lions as follows:
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 eN-
haust the money in No. /; when yea 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.
2 you may begin spending from No. 3; but
you must not spend more than SO in the
first lightweight miles of your journey,
or more than $40 In the first 1888 miles. or
more than $40 in the whole journey of 66S
miles
1.-The orderly departs with the three
purses and after an absence Of several
days presents himself ragged and I'M
kempt, but with Jaunty air, and reports
10 the general:
Sir when ] found myself comforta-
bly, seated on the train ! opened your in
structions and carefully read them, ana
found that your directions naturally
seemed to imply that | could spend SlS |
from No. purse during the first S miles |
of my journey and 81 from No. purse
between the IS and the 1873 miles; s. from
No. purse between the l9Sth and the
36Sth mile and nothing whatever between
the 3GSth and the 66sth mile. l 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
had to get off the train and walk back
to your headquarters.
THE application of this story to Cap
tain Lemly's opinion Is found IN the SUD
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 Crowninshield, Chief Of
the Bureau of Navigation, addressed a |
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 |
impossible TO cause the forty vacancies |
To this Captain Lenly made |
taking the ground that the only |
Hay in which effect can be given TO the |
provision for thirteen vacancies above the |
grade Of commander is to consider that |
'hese expressions mean thirteen. seven, |
md nine vacancies in the grades of cap |
ain, commander and lieutenant com
nandcr. respectively in the order Of the |
-ank of the applicant and two in the
Grade of lieutenant and these two by |
He holds that If this mean
ng is not given to these expressions that |
he first three clauses become merely |