Evening star. [volume] (Washington, D.C.) 1854-1972, 1904-07-13
THE LAW IN THE CASE

Decision Of the Controller Of the
Treasury, He Holds, is Legal
and Binding.
Several important principles of military
Attorney General Moody to the Secretary
of War in regard to the cases of civil war
veterans advanced in grade on the retired
list. The opinion, In part, follows:
Act Of April %, 1904.
THE act of April %. 1904. provides: Amy
officer of the army below the grade of
brigadier general, who served with credit
as an officer or as an enlisted man in the
regular or volunteer forces during the civil
war prior to April 8, 1865, otherwise than
as a cadet, and whose name is borne on the
oEnclal register Of the army and who has
heretofore been. or may hereafter be, re-
tlred on account of wounds or disability,
incident to the service, or on account of
age, or after forty years service, may In
the discretion OF the President by and
with the advice and consent of the Senate
be placed on the retired list of the army
with the rank and retired pay Of one grade
above that actually held by him at the
time Of retirement
In the operation of this law a number
OF omcers or the army on the retired list
became entitled to advancement In the
executive discretion. and in reference to a
particular case of this class which you
state, you suggest the general inquiry
whether In the event advancement be given
the ofncer In question in the form of re-
cess appointment. the vacancy should be
regarded as happening on April %. 1904.
the GATE or approval of the above act or
on the date when the discretion vested in
the President by that enactment had been
fully exercised by the verfcation of the
service of the officer in the civil war and
the determination that the service was
creditable.
Provision Of the Statutes.
The Senate adjourned on April 2S, with
out day, and the inquiry is thus presented
whether the authority of the President is
to be regarded as his constitutional power
to appoint to Office and whether the power
was ripe for exercise and vacancies existed
before the adjournment OF the Senate with
IN the meaning of the prohibition of sec
tlon 1861, Revised Statutes, which provides:
NO money shall be paid from the treasury
as salary, to any person appointed during
in any existing Office, If the vacancy existed
while the Senate was in session and was
by law required to be filled by and with
the advice and consent of the Senate until
SUCH appointee has been confirmed by the
Senate
SoSSIiohS
upon this situation you PROFOUND the
following precise questions:
1. Do officers of the army on the retired
list hold public office, and should the adj
vancement authorized In the act of April
%, 1904, be accomplished by an exercise of
the appointing power?
when vacancy occurs, or Is created
ny d legislative enactment while the Senate
IS IN session, can such vacancy be filed
Of tIa
act or thing Is required ty law to be done
as condition precedent to such exercise Of
the appointing power. In other words,
nus 81. ahe uate when the vacancy occurred.
or was created. be alone considered in con-
nection with the exercise of the appoint
ing power, or must the statutes which re-
qulre certain acts to be done. or which
require an exercise of the executive discre-.
tlon, be also considered in determining
whether a vacancy exists which may be
nlled by recess appointment
Opinion in the Wood Case.
AS TO your first question-it is clear that
oilccfs or the army on the retired list hold
PuDhc ONCE They are part of the army
OF the United States. But 1t is equally clear
that advancement on the retired list sucb
as is authorized by the act of April q 1904
does not create office, and is not ac
compLshed by an exercise of the appointing
power. This is made evident 1 think. by
the opinion of the Court of Claims In Wood
agt. United States. wv
BY Revised Statutes. section 1904. Of
ncers on the retired list of the army com
pose part of the army of the United states
and. therefore. no one can be upon that Est
VINO is not an officer appointed as reoured
Dy me constitution. article II. section 2
But pelng such officer thus appointed of
any grade on the active list he NAV he
retired with rank higher or lower than
That which belonged to his office whenever
Congress sees fit so to provide Congress
cannot appoint him to a new and difrerent
office because the Constitution vests the ap-
pointing power in the President with the
auVice OF the senate, or In certain classes
in the president along, the heads of the ex-
ecutlVe departments, or the courts of law:
but Congress may transfer him to the re-
llred list, and may change his rank and
pay at any time without coming in con-
fiict with that provision of the Constitution.
Congress has frequently exercised the pow
er of changing the mere rank of officers
without invoking the constitutional power
of the executive to appoint the incumbents
to new offices.
In the present case the claimant being
colonel in the line of the army his retire
ment with the rank of ma jor general under
the act authorizing it did not confer upon
him new office, and. therefore, did not
make him a major general. He remained
a colonel of cavalry. to which office he had
been duly appointed. and he acquired only
new and higher rank by the act of Con-
gress authorizing his retirement.
Supreme Court Opinion.
'In the opinion of the Supreme Court on
the same case Q07 U. s., 41D. Justice
Blatchford. speaking for the court, after
stating the views of the Court of Claims.
says:
These views appear to us to be sound
Gen Wood. holding the office of a colonel
of cavalry in the army, his retirement with
the rank Of major general under the act
of 1868 did not confer on him the office
Of major general. He remained in the
Office of colonel of cavalry, and acquired
high rank and higher pay. as a retired
officer. Such rank not being office, Con-
gress could change his rank and his pay as
1t did by the act Of 1875
81 further of the opinion that this
view of the is not affected by the fact
that the exercise of the discretion of the
executive under the act of 1904 must be
approved by the Senate Concurrence by
the Senate is a condition attached to the
exercise of the Presidents discretion and
to the right of the officers to be advanced
but does not make that an office which
otherwise would not be so. nor invoke the
power of appointment under the Constitu-
ton. The condition is merely a particular
Nd Of for he odx,ar Il,