Evening star. [volume] (Washington, D.C.) 1854-1972, 1930-02-06
CROSBY'S CIVILIAN
STATUS QUESTIONED
IN FACE OF RULING
Continued From First pageo

A. Hoehling that retired officer might
not be sent to an insane asylum without
his consent. The Government officials
based their entire contention that the
lower court was in error on the plea
that the retired officer was still in the
military establishment and subject to
orders Of the Secretary Of the Navy.
Regulations Quoted:
The decision, in part, declared that:
IAN officer on the retired list of the
Navy may be assigned to active duty
in time of war (section 1882, r. 81
and, with his consent, In the discretion
Of the Secretary of the Navy, he may
"be ordered to such duty as he may be
able to perform at sea or on shore, and,
while so employed in time of peace,
shall receive the pay and allowances
OF an orncer of the active list OF the
same rank" Act of August %, 1912, 81
Stat, 329.
''The status of a retired officer of
the Army was the subject of an inquiry
244. Section 1885, r. S., provides
that "officers retired from active serv-
ice shall be entitled to wear the uni
form Of the rank on which they may
be retired. They shall continue to be
borne on the Army Register and shall
be subject to the rules and articles of
war, and trial by general court-martial
for any breach thereof"
This section is the substantial
equivalent of section 1457, relating to
the retired officers of the Navy. The
Supreme Court said: 1t is impossible to
hold that men who are by statute de-
IN INo ~ Of &Ia Nx,1ao
may wear the uniform, whose names
shall be borne upon it's register, who
may be assigned by their superior off,
GERS to specified duties by detail as
other officers are, who are subject to
the rules and articles of war, and may
be tried, not by a jury, as other citizens
are, but by military court-martial, for
any breach of those rules, and who
finally may be dismissed from the
service in disgrace, still are not in the
military service. We are of the
opinion that retired officers are in the
military service of the Government
Tyler Case Determines View.
I'm our view the decision in the
Tyler case is determinative of the issue
here. Comdr. Treibly's incapacity' is
the result of an incident of the service.
His care and protection while thus in
capacitated, and unable to act for
himself, are the concern and duty of
the Government. His commitment,
therefore, was authorized by Section
4S43, r. s., and it follows that the
judgment must be reversed with costs,
and the case reversed and remanded."
Merely for the sake of conjecture,
however, the question was being dis
cuSsed today as to what, If anything.
would be done in case that Gen. Crosby
was confirmed by the Senate and took
Office. There would apparently be no
question of the legality of his appoint
ment. In this connection, it was re-
called that in the case of Frizzell VS..
Newman (former District Commits
sioner) the United States Supreme
Court held that in the absence of an
application in quo warranto by the
Attorney General or the United States
attorney a citizen would have no such
interest as would entitle him to ques-
ton the appointment. The court in
timated that person entitled to the
position in the event of the disqualified
ton of the appointee might have such
interest.
In the case of Commissioner Dough-
erty, should he wish to question the
naming of the Army officer as his sue
cessor, the point would probably be
made that his term OF office has ex-
pired and that he is holding over mere
ly at the pleasure of the President.
Action Is Unlikely.
The Attorney General, having already
ruled that the Army officer on retire.
ment becomes a civilian. it is not likely
that he would bring any legal action,
and neither would United States Attor-
ney Rover.
Provisions of law allow retired Army
officers who are appointed by the Pres
ident by and with the advice and con-
sent of the Senate, to receive not only
their retired pay from the Army, but
also the pay of the position to which
they are appointed. This permits some
Army officers to receive several thou
sands of dollars from the two sources.
If, however, an Army officer is ap-
pointed to a position by the President
and the Senate does not act on his
case, the officer may receive only the
amount of his new position. This re-
striction was binding in the case of
Brig. Gen. Herbert M. Lord. who was
retired from the Army as chief of A.
nance and who became the second di-
rector of the Bureau of the Budget.
Gen. Lord received $4,000, $4,000 of
which came from the Army and $500,
the balance, from the Bureau of the
Budget
If an Army officer, however, is retired
from the service because of disability,
he may accept any position without re-
striction as to pay and continue to re-
ceive his retirement pay from the Army.