The Washington herald. [volume] (Washington, D.C.) 1906-1939, 1913-08-06
BILL AIMED AT WILSON

Assistant District Attorney Says Suit
Is Really Against the
Executive.
Authorities will be presented before Jus
tice Barnard in the District Supreme
Court this morning by attorneys for the
government and counsel for Mai. Beech .r
r. Ray. U. S. A., in his suit against
Secretary Garrison and Assistant Secre-
tary Breckenridge, Of the War Depart
ment for promotion, whether the act IT
Congress of October 1, 1850. ordering pro-
motions in the army and navy by Sc
niority is constitutional
Bill Aimed at President.
Reginald Huidekoper, Assistant United
States Attorney, argued for the govern
ment yesterday and said that the bill
is to enjoin the Secretary of War and
the Assistant Secretary Of War from
certifying to the President the name Of
any other than the plaintiff to the Do
sition Of deputy Quartermaster general
with the rank of lieutenant colonel. Mr..
Huidekoper declared that the bill was
really aimed at the President Of the
United States, and 1t asks the court to
compel the President to nominate the
PLAINTIFF for this position.
SHOULD the relief sought for be grant,
ed, any one could come into the court
and nullify all the business Of govern
ment by restraining communications be-
tween the President and heads Of depart
ments. 1t is sought to have his court
give an order to direct an action which
it has no power to compel" SAID Mr..
Huidekoper.
rs not the apparent purpose Of this
bill to prevent the President from send
ing any other name to the Senate thar
that OF the plaintiff?
The power Of appointment is vested
bv the Constitution solely In the Presl-
dent. and the Secretary of War is not
exercising any appointive power in this
case. nor has any such power ever been
exercised by that officer. A promotion.
of course, is an appointment.
President Has Right.
THE President is commander-in-chief
Of the army and navy. He has the right
to send to the Senate this name or any
other name. He may of his own volition
select Maj. Rays name or the name of
his immediate Junior. How could the
Secretary of War prevent him sending
what name he desired? We are familiar.
OF course, with the departmental Gus
tom of advising the President as to
promotions. Can this court restrain the
Secretary Of War from giving the Presi-
dent information? Can 1t enforce such
a decree?
Under the Constitution. none else has
either the duty. the authority. or the
power to nominate. 1t is the duty of
the President. and the President has
the right to RELY on the knowledge and
the records of personnel in the War De-
partment. 1t is the duty of the officers
OF the War Department, under their
oaths, to communicate such facts to
the President when called upon SO to
do"
Mr. Huidekoper referred to the opinion
of Attorney General .McReynolds in the
present case, with reference to the
seniority promotion law Of 1890 Mr.. Nc
REYNOLDS says the law is not constitu-
tfonal.
u,
Stephen Day, OF Chicago. appeared Tor
Maj Ray and declared that the case
hinged upon the proper construction OF
the law OF 1880. He contended that II II
is constitutional 1t is binding equally
upon every omcer OF the government.
This whole case" said Mr.. Day, "hinges
~ Zoo q. o,,..;.,,,;o,ai &. q.
Si,s;rr a,,,.I,,, 49,, 60, nescer ~
a,,a.n,.t tn. - CT. for,h ,h,t
80 ran... - q, a~oo,;o,s haIar tha
W.. p .;s;a 1897 n,,;o,;.,,
Ell IL Tt,;S H. e 49,. 49, 80
..lS s...-S,aaa. ,,.;.L ~
-. sT..t % ,'ar..
ca. .uss;.ea -. :. -, oaon.S;rG
-. ~ Hea;s;a 20 ~ Srnro To,r.
-. .n - TIT. ,,ain.;S - III. -
" -, ..e az. ,au - LII, an ~ 49,.
- r.. 80 - tis ,,estaS r;,ht
uoi. Vi 'la. eo" -, aea;....
Pioiiotoh - ~ q" a,
ana Is SO re.osu JPN
IONS OIL .ne A.t ;n y. tna nnaso VI ann
nhi'eu S'".es ~ a. -