The Washington times., 1913-08-05
MAJOR RAY OPENS
BATTLE IN COURT
Army Officer Seeks to Force
His Promotion to Deputy
Quartermaster General.
Continued from First Page.)

ing any other name to the Senate than
that of the plaintifr? The power of ap-
pointment is vested by the Constitution
solely in the President, and the Secre-
tary of War is not exercising any ap-
pointive power in this case, nor has
any such power ever been exercised by
that officer. A promotion, of course,
is an appointment.
The President is commander-in-
chief of the army and navy. He has
the right to send TO the Senate this
his own volition select Major 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 custom of advis-
ing the President as to promotions Can
this court restrain the Secretary OF
War from giving the President in
formation? Can 1t enforce such de-
cree?
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"
M'Reynolds' Opinion Cited.
Mr.. Huidekoper referred to the opinion
OF Attorney General McReynolds in the
present case, with reference to the
seniority promotion law Of 1880. Mr..
McReynolds says the law is not con-
stitutional
Mr.. Day, who followed Mr.. Huide-
koper, discussed this law at length.
This whole case" he said, hinges
upon the proper construction of the law
of 1880. and IL it is constitutional, II is
binding equally upon every officer of
Government. The law sets forth that
with respect to all promotions below the
grade of brigadier general. seniority
shall rule. This law is mandatory. and
Is, therefore, no interference with the
executive department of Government,
but obedience must be given, according
to the decision Of the Supreme Court
of the land This plaintiff Is only exer-
cising the rights Of any citizens in com
ing into court and asking the protec-
ton of that court in his vested right.
"a promotion is not an appointment,
and is SO recognized in several opin-
ions of the Attorneys General of the
United States prior to the present one.
If our contention with respect to the
effect of this law is sound, then we
are here properly. II the law is man.
datory, then there can be no inter-
ference whatever with the executive
arm Of the Government.
Can Claim No Immunity.
"The Secretary Of War, IL the law be
constitutional, can claim no immunity
later because of direction OF the Presi-
dent. There have been several opin-
ions OF the Supreme Court on this spe-
cific point. No man is above the law,
no matter how high and exalted his
office"
Mr.. Day contended that President
Taft had vested a right to the promo
ton in Major Ray by nominating him,
and that this had a legal effect, even
If the nomination Iapsed because of
non-action on 1t by the last Congress.
1T has never before been questioned
that Congress did not have the power
to regulate the grades in the army.
said Mr.. Day in conclusion, land II has
been found several times that II the
regulations of a department come in
conflict with the act of Congress the
regulations must co.
United States Attorney Clarence r.
Wilson spoke briefly On the same lines
as Mr.. HuidekOper. Rufus S. Day, of
Washington, also appeared for Ray, but
made TO argument.
Authorities will be presented to JUS
tice Barnard tomorrow, and the court
may then give his decision.