Evening star. [volume] (Washington, D.C.) 1854-1972, 1913-08-05
RAY CASE IS ARGUED
BEFORE D. Of c. COURT
Constitutional Rights of Army
and. Naval Officers In
voIved, Is Claimed.

A constitutional question of the utmost
Importance to officers of the United
States Army and Navy is involved, ac-
cording to statements in court, in the
| case of Maj. Beecher B. Ray, L. S. A..
against Secretary Garrison and Assist
ant Secretary Breckenridge of the War
Department, heard by Justice Barnard
In the Supreme Court of the District of
Columbia today
The question upon which the case ap-
pears to hinge is whether the act of
Congress of October l, 1890, ordering
promotions in the army and navy by
| seniority is constitutional.
Reginald Huidekoper. assistant United
States attorney for the District OF CO.
lumbia, opened the case for the gov
eminent. He said 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 position of deputy
quartermaster general with the rank OF
lieutenant colonel
Aimed at the President.
The bill is really aimed at the Presi-
dent" he said. land 1t asks this court
to compel the President to nominate the
plaintiff for this position. Should the re-
lief sought for be granted any one could
come into this court and nullify all the
business Of moment by restraining COM
munications between the President and
heads of departments. 1t Is sought to
nave this court give an order to direct an
action which it has no power to compel
Mr.. Huidekoper argued that the power
of appointment is vested by the Consti-
tuition solely in the President and the
secretary of War is not exercising an ap-
polntive power in this case, nor has that
officer ever exercised any such appointive
power
THE President is commander-in- chief
OF the army and navy, and he had the
right to send to the Senate the name of
Maj Ray or any other of his own choice.
How could the Secretary of War prevent
the President sending what name he de-
sired? We are familiar Of course. with
the custom in the departments of advising
the President as to promotions. Can this
court restrain the Secretary OF War from
giving the President any information?
1T is the duty of the President, and
the President has the right to rely on the
knowledge of tie records of the person
mel of the War Department. Under their
oaths, it is the duty of the officers of the
War Department to communicate such
facts to the President when called upon
to do So
None Above the Law.
Stephen Day of Chicago argued for Mai.
Ray. He declared that the case hinges
upon the proper construction of the law
OF 1890. and If 1t is constitutional 1t is
binding equally upon every officer OF the
government.
The law sets forth.y he said. that
with respect to all promotions below thu
grade of brigadier general seniority shat.
rule. This law is mandatory, and is
therefore no interference with the execu-
tive department of the government, but
obedience shall be given, according to the
decision of the Supreme Court OF the
United States.
This plaintiff is only exercising the
rights of any citizen in coming into this
court and asking protection Of the court
in his vested right.
"A promotion ia not an appointment,
and is SO recognized in several opinions
of the Attorneys General of the United
States prior to the present one"
He said that IL his contention with
respect to the effect of the law is sound
then his client is appearing in court
properly. IF the law is mandatory
then there can be no interference what
ever with the executive arm of the
government"
Claims a Vested Right.
Mr. Day contended that the Secretary
of War. il the law be constitutional. can
claim no immunity later because of di-
rection of the President He said there
have been several decisions of this point
III the supreme court Ol the united
States. He declared no man is above the
law, no matter how high and exalted his
Office. /
He commended further that President
Taft had vested a right to promotion to
Maj. Ray by nominating him, and that
this had a legal effect even if the Senate
failed to take any action.
He declared the right of Congress to
regulate the grades in the army had
never been questioned, and that 1t had
been found several times that II regu-
lations of a department confiicted with
an act Of Congress the regulations must
go.
Clarence Wilson, United States attorney.
for the District Of Columbia. spoke along
the same lines as did Mr. Huidekoper.
He declared that it has been held by
the courts that the President cannot be
restrained by any mandamus or injunc-
ton. He said that the President is
coordinate part of the government Ru-
fus S. Day of This city also appeared for
Maj. Ray.
Justice Barnard ordered that the at
torneys present authorities in court to-
morrow and that he may give his decision
then.