Evening star., 1909-05-14
A HEADlESS BUREAU
Steam Engineering of Navy
Was Without Chief.
RULING CAUSES SURPRISE
View Taken by Attorney General
Wickershar1.
ANALYSIS OF THE STATUTES
Office Vacant Since Compulsory Re-
tirement of Capt. Barton-Capps'
Appointment Unauthorized.
ANALYSIS OF THE STATUTES

Il
tirement of Capt. Barton-Capps'
Appointment Unauthorized.
| The Office of chief of the bureau OF
steam engineering. Navy Department. was
vacant from the compulsory retirement OF
Engjneer-in-('hief John X. Barton, De
cember %, 1903, until today, and the desfg.
nation Of Chief Constructor w. l.. Capps
as acting chief of the bureau of steam
engineering was unauthorized. That Is
the substance OF an opinion rendered by
the Attorney General in answer to In
quiries submitted by the Secretary of the
Navy. 1t was altogether contrary to ex-
pectations, and bids fair to make radi.
cal change in the traditional policy to-
ward retired officers The Attorney Gen
erals opinion follows:
Attorney Generals Opinion.
May IL. 1909.
The Honorable
The Secretary of the Navy.
Sir: l have the honor to reply to youl
several communications requesting ar
opinion as to the legal status Of Capt
John K Barton United States Navy, with
respect to the office of chief of the bureau
of steam engineering and that of the pres
ent acting head Of that bureau.
| 1.-THE facts in the case, as you advise
me, are as follows: On June 8. 1908. John
X. Barton was an officer of the line OF
the grade of captain. On that date he
was appointed. ad interim chief of the
bureau of steam engineering. to fill the
vacancy caused by the death of Engineer
o1,f1v~
| 1908 he was appointed by the President
by and with the advice and consent of the
Senate, engineer-in-chief Of the navy for
the statutory period of four years. De-
cember 5, 1903. he appeared before re-
tiring board. which found him physically
Iincapacitated for active service. The find
ing of the board was approved by the
President December %. 1908 on which
date he was placed upon the retired list
BY order dated December %, 1908, he was
detached from duty as chief OF the bureau
| Of steam engineering and ordered home
in the following language:
| Having been placed on the retired list
of officers of the navy, from December
% 1908, you will regard yourself de-
1 tached from duty as chief of the bureau
of steam engineering. Navy Department
Washington, d. c., and from such other
duty as may have been assigned 10 you'
and you will proceed to your home.
| "Immedia tely upon your arrival home
report your local address in full and the
date of your arrival to the bureau OF
navigation. (See regulation 241, U. s.
| Navy Regulations, 10O5)"
l. December p, 1908. the President issued
| the following order appointing the chief
| constructor as. acting chief of the bureau
of steam. engineering:
"In accordance with the provisions OF
| section 179 of the Revised Statutes you
are hereby designated as chief of the
bureau of steam engineering. You will
| report to the Secretary of the Navy for
duty and assume the duties covered by
i this appointment at your earliest con-
venience. This duty is in addition to your
present duties"
Capt. Barton's Legal Status.
! "a AS to the legal status OF Mr.. Barton
with respect to the Office of chief Of the
bureau OF steam engineering:
Section 419 Of the Revised Statutes pro-
vides that the business of the Depart
ment of the Navy shall be distributed in
such manner as the Secretary of the
Navy shall Judge TO be expedient and
proper among eight bureaus, the sixth
of which is "a bureau of steam en-
gineering" Section AL enacts as fol.
lows:
the Department Of the Navy shall be
appointed by the President, by and with
the advice and consent of the Senate
from the classes of officers mentioned In
| the next five sections respectively, OF
of captain i'm the staff corps of the navy
on the active list, and shall hold then
offices for the term Of four years.
Section 424 provides that the chief OF
the bureau of steam engineering shall
be appointed from the list Of officers OF
the navy not below the grade OF lieu
| tenant commander. and shall be a skill
full engineer. Section 147l, as modified
by the act of March 3, 1880. c. 413. sec.
go Stats, p. 1O05). provides that the
| ing, when that office is filled by an
| officer of below the rank of rear ad-
miraI, shall have the rank Of rear adj
miral while holding that position, and
| By the act of March 3. 1905, c. 14S1 (3S
! Stats, lid, it is provided:
That a line officer of the navy may
| be detailed as assistant to the chief OF
Navy Department, and tAat such officer
| during such detail shall receive the high
est pay of his grade. and in case OF
| death, resignation, absence or sickness
| of the chief Of the bureau. shall, unless
| otherwise directed by the President, as
provided by section 179 of the Revised
| Statutes, perform the duties of such
chief until his successor Is appointed, or
| such absence or sickness shall cease"
Commodore Writings Case.
| AS Attorney General MacVeagh ad-
Wed the Secretary OF the Navy, July g.
1881, in the case OF Commodore Whit
| ing, the appointment by the President.
by and with the advice and consent of
the Senate, under sections AZ. 422. Re-
vised Statutes, of an officer of the navy
| to be chief of the bureau of navigation
| was an investure OF him with an ad-
ditional office. While chief of the bu-
| reau of navigation. he remains cap
| tain in the navy 40 Opin., 37s). BY
| virtue of the former office. his orders
have the force and effect OF an order
| emanating from the Secretary of the
Navy tsec. 400. and while he continues
| to hold said Office he has the relative
| rank of commodore (sec 1472)."
| By the act of March 3. 1899 above re-
| ferred to, the relative rank prescribed by
| that section was changed to an absolute
rank to be held by the bureau chief while
he retained the latter Office The ques-