The Washington times. [volume] (Washington [D.C.]) 1902-1939, 1903-12-08
Question of a Recess
Still Widely Debated
Official Legal Ruling in Test Case Desired 10 Uphold
Presidents Decision Greaf Divergence of OPINION

Although President Roosevelt decided
for himself the question Of the existence
Of a recess between the ending OF the
extraordinary session and the regular
session Of Congress yesterday, and act
ed accordingly in sending to the SEN
ate the nominations of General Wood
and lb1 other army officers, general dis
cussion on the point has not by any
means come to an end. 1t is not prob
able that any agreement on the point
can ever be reached. so decided are ad-
vocates Of each view that their conten-
ton is correct But an official decision
will be secured from the Comptroller
Of the Treasury on the point OF paying
General Woods salary
Steps to presenting a test case have
already been taken by Secretary Root
with the idea Of having a decision made
at once, without waiting for the termi-
nation Of the Wood case by the Senate
Committee on Military Affairs After
conference with the President the Sec
rotary determined to submit test case
Immediately to the Auditor for the War
Department and Comptroller Of the
Treasury for an official ruling
Secretary Root is OF the opinion that
two important legal questions must be
determined. One is whether there was
an interim between the special session
and the regular session of the Senate
which can be held to amount TO a re-
cess The other is whether the Presi-
dent in making the recess appointments
has acted validity within the Constitu-
ton.
The most interesting legal question
relates to the standing Of the officers
promoted and retired dependent upon
the promotion Of General Wood. The
questions to be determined are whether
these officers are on the active list or
the retired list. and whether they are
entitled to the pay Of a brigadler gem
eral, retired, or colonel on the active
list
There is no divergence of opinion on
the point OF pay Up to the end OF the
extraordinary session The recess ap-
pointments were made to date from
August s. and other days after that, and
until yesterday such officers were en-
titled TO draw the pay and hold the rank
OF the Office to which promoted.
The question to be decided. however, IS
as TO what rank and pay they can be
legally given from this date until the
Senate acts upon the nominations The
Administration view is that the nemi-
nations sent in yesterday are TO be re- Z
garded as original recess appointments,
and that General Wood and all the other
promoted officers continue TO hold the
higher rank and draw the pay of that
grade, unless the Senate rejects the
Wood nomination.
The discussion has taken a wide range. |
II the legal officers TO whom the test
case VIII be referred officially determine /
there was a recess between the adjourn ]
ment Of the extra session and the call /
ing TO order Of the extra session, then 1
the Presidents recess nominations are3
legal II there was no recess-and Sena- /
tor Frye and many other veteran Sena-
tors declare there was uot-then the re- /
cess appointments are invalid under the /
Constitution. though the nominations 4
of these officers slade TO the Senate are3
unquestionably valid. ~,
Furthermore If there was a recess /
of Congress, then every member viii |
have a claim for mileage29 cents a 4
mile-for going home after the ad- /