Evening star., 1909-05-14

filling the post OF chief Of bureau with
the rank and emoluments incidental
thereto. The law, ne said. simply means
that the officers appointed shall. for the
term specified, be assigned to these po.
sitions. and 1t implies no withdrawal from
the list of officers and no loss Of rank or
pay. If the ofiicer SO assigned receives
less pay by virtue Of his rank in the
navy than the salary provided by the
| act, he is then entitled to draw the salary
in lieu of his pay. But his naval pay
exceed the salary. he Is not bound to &C.
| cept the latter and relinquish the former.
What class Of service. then. is a rear
| admiral performing when acting as chief
| of the bureau OF yards and docks? He
is not acting at sea- nor Is he on leave
Of absence or waiting orders His duties
are. plainly enough, OF the class desig-
| mated In the 18th section as shore duty,
| and the pay attached to that class Is. in
| my opinion, that to which Rear Admiral
| Smith is entitled. IL he chooses to claim
it. in lieu OF the salary annexed by the
act of July 5. 1882. to the Office to which
he is assigned" 90 Opin., 37S-9).
At the time he appeared before the re-
firing board, therefore, Mr.. Barton was
| officer Of the line Of the navy, holding
| the rank of captain; second. he had been
| detailed by the President, with the advice
and consent Of the Senate. to hold the
| Office OF engineer-in-chief Of the navy for
a period of four years.
Law ScSdIOAuS xSctAISmSAI.
Section 144s. Revised Statutes. provides
that:
Whenever any officer, on being ordered
to perform the duties appropriate to his
commission, reports himself unable to
comply with such order. or whenever.
In the Judgment of the President, an
officer is incapacitated to. perform the
duties of his Office, the President, At his
discretion, may direct the Secretary OF
the Navy to refer the case Of such
officer to a board of not more than nine
nor less than five commissioned officers.
two-fifths of whom shall be members OF
the medical corps OF the navy. ."
Section 1449:
Said retiring board shall be authorized
to inquire into and determine the facts
touching the nature and occasion of the
disability Of any such officer, and shall
have such powers of a court-martial and
of a court of inquiry as may be neces-
| sary"
Section 1851:
When said retiring board finds an Of
fcer incapacitated for active service 1t
I shall also find and report the cause
which, in it's judgment. produced Els in
capacity. and whether such cause is an
| incident of the service
Section 1852:
"A record of the proceedings and de-
clsiOn OF the board in each case shall be
| transmitted to the Secretary of the Navy,
and shall be laid by him before the Presf-
dent for his approval or disapproval, or
| orders in the case.
| Section 1853:
When the retiring board finds that an
officer is incapacitated for active service,
| and that his incapacity Is the result of
| an incident of the service, such officer
shall. If said decision Is approved by the
| President. be retired from active service
with retired pay, as allowed by chapter
| 8 of this title"
Section 1857:
/ Officers retired from active service
shall be placed on the retired list of Of
f1cers of the grade to which they be-
retirement. and continue to be borne on
the navy register. :"
| Section 1862 enacted:
| mo officer on the retired list of the
navy shall be employed on active duty ex-
/ cept in time of war" but by the act Of
June I. 1900. chapter $50 ts1 stats. 10s,), it
was further provided that:
| During period OF twelve years from
the passage of this act any naval officer
| on the retired list may, in the discretion
| of the Secretary OF the Navy, be ordered
| to such duty as he may be able to per-
/ form at sea or on shore, and while so
temployed shall receive the pay and al
| lowances OF an oificef of the active list
Of the grade from which he was re-
tired"
| December 4. 1908, the Secretary of the
| Navy ordered Engineer-in-Chief John X.
Barton. U.SN., before the naval retiring
board for examination in conformity with
| title 10 chapter 3, of the Revised Statutes,
| and such proceedings were thereupon had
that on December g. 1905 the board de
cided that Engineer-in-Chief John x. Bar
| ton, U.S.N., is fncapacitated for active
service by reason OF apoplexy. and that
the incapacity of said Engineer-in-Chief
Barton Is a result of an incident of the
L loor fo0 ind =
by the President December %, 1908, in the
following language:
| 1.-The White House.
i December %, 1908.
1.-THE proceedings and findings of the
board in this case are approved and En-
gineer-in-Chief John X. Barton, U.SN..
will be retired from active service and
placed on the retired list, in conformity
with the provisions Of section 1853 of the
Revised Statutes. T. ROOSEVELT"
Status Of Acting Chief.
90 With respect to the status OF the
present acting head Of the bureau:
On December 2s 1908. the President ap-
pointed the chief constructor as acting
| chief of the bureau of steam engineering,
who thereupon assumed and has ever
since discharged the duties Of that Office.
Power to make this designation Is said to
be found in sections 17S. ITO, $50 and 1S1
of the Revised Statutes:
Section 17S. In case OF the death. res
ignation. absence or sickness of the
chief Of any bureau the assist
ant or deputy Of such chief or Of such
| officer, or IL there be none, then the chief
| clerk of such bureau, shall. unless other
| wise directed by the President, as pro-
vided by section 179. perform the duties
of such chief or of such officer until a
successor is appointed or such absence
| or sickness shall cease.
| Section 1T9. In any of the cases men,
| toned the President may. in his
discretion, authorize and direct the head
of any other department or any other
officer In either department. whose ap-
pointment Is vested in the President, by
and with the advice and consent OF the
Senate, to perform the duties of the va
| cant Office until q successor Is appointed,
or the sickness or absence of the incum-
4 bent shall cease.
Section $50. A vacancy occasioned by
death or resignation must not be tenn
porarily filled under the three preceding
sections for q longer period than thirty
| days.
Section 1s1 No temporary appoint
| ment. designation or assignment Of one
officer to perform the duties of another.
in the cases covered by sections 1T and
| 17S. shall be made otherwise than as pro-
vided by those sections. except to fill q
vacancy happening during a recess or the
Senate"
1t will be observed that no provision Is
rarily filing a vacancy caused by the
the vacancy is caused by death, resigna-
i uln th.A cic<o MT