« AnteriorContinuar »
provision of title sixty-five of the Revised Statutes of the United States, and amendments thereto, regulating rights of way for telegraph companies over the public domain.
This law was passed soon after the decision of the Supreme Court in the case of Richmond v. Southern Bell Telephone Company (174 U. S., 761), that telephone companies had no rights under the law of 1866. It expressly mentions any citizen of the United States and, therefore, there is no doubt that the law of February 15, 1901, embraces individ uals who are citizens. Whether Mr. Walter W. Goode is a
citizen or not does not appear.
Should he obtain the permit from the Secretary, the proviso just quoted subjects such permit to all the burdens of Title LXV of the Revised Statutes.
But whether, by virtue of this proviso, "the permits given hereunder" by the Secretary of the Interior carry all the privileges and benefits of Title LXV does not seem to be, properly speaking, a question arising in the administration of your Department, by reason of the mere filing of Mr. Goode's paper purporting to accept the provisions of the act of 1866. There is nothing before me--and, so far as I am advised, nothing before you-except that paper. There is nothing before me indicating that Mr. Goode is claiming to be entitled to the privileges and benefits of the act of 1866 (Title LXV), after having obtained a permit from the Secretary of the Interior.
I am of opinion that his merely filing with you the paper you sent me neither confers upon him the benefits and privileges, nor subjects him to the burdens and restrictions of the act of 1866, because he is not a telegraph company organized under the laws of one of the States.
I return Mr. Goode's paper.
HENRY M. HOYT,
NAVAL OFFICERS-RELATIVE RANK-PARDON.
The granting of a pardon to a naval officer for the purpose of restoring him to his original position on the Navy list, under the belief that a nomination intended to accomplish that end had failed because it had not been directly confirmed by the Senate, but which, in reality, had been confirmed by the advancement of another officer nominated at the same time, did not operate to advance such officer beyond the relative position he originally held on the list.
The effect of a pardon is to put an end to the infliction of further punishment. In the present instance, it merely operated to end any doubt there might be as to the legality of the restoration of such officer to his original position.
DEPARTMENT OF JUSTICE,
SIR: I have the honor to acknowledge the receipt of your letter of November 8 last, with inclosures, asking for my opinion "as to whether or not Captain McCalla is entitled, as he claims, of right and by law to a place on the Navy register five numbers above Captain Chadwick," which would be six numbers above his present position.
The facts upon which Captain McCalla bases his claim are as follows: On May 15, 1890, Capt. Bowman H. McCalla, then a commander in the Navy, ranking next after Commander Caspar F. Goodrich, was sentenced by a courtmartial to be suspended from rank and duty for a period of three years, and to retain his present number on the list of commanders while so suspended." On December 24, 1891, the unexpired portion of this sentence was remitted. Commander McCalla had then lost nine numbers, and, by reason of such loss of numbers, his name appeared nine numbers below his original position and immediately following that of Commander Charles H. Davis.
In a letter dated August 10, 1898, your Department invited the attention of the President to the meritorious services of certain naval officers in Cuban waters during the war with Spain and recommended prompt recognition by the Government of such services. The following recommendation was made in the case of Captain McCalla: "Commander Bowman H. McCalla, commanding the Marblehead,
for eminent and conspicuous conduct in battle off the coast of Cuba, to be restored to his original place on the Navy list, so that his name shall appear on the list of captains next after that of Capt. Caspar F. Goodrich."
This recommendation was approved by the President, and Captain McCalla was subsequently nominated accordingly. The Senate, however, failed to act directly upon this nomination, and Captain McCalla's name was therefore again placed in the position on the list which he held prior to such advancement-i. e., next after that of Capt. Charles H. Davis. While at the time this nomination was made he had lost nine numbers, he was really only six numbers below his original position, owing to changes by reason of death and advancement which had eliminated the names of three officers.
On March 3, 1899, Commander McCalla having in the ordinary course reached No. 1 on the list of commanders, and a vacancy occurring in the grade of captains, received and accepted the routine promotion and appointment to the grade of captain.
On February 6, 1900, certain questions affecting the status and pay of Captain McCalla and other officers were submitted to the Attorney-General by the Secretary of the Treasury upon the suggestion of the Comptroller; and on February 19 an opinion was rendered that the advancement of McCalla, on August 10, 1898, was not nugatory, as your Department had supposed, by reason of the failure of the Senate to confirm such advancement in terms; but that, on the contrary, the Senate, having confirmed the nomination of another officer (Lieutenant-Commander Pillsbury) "to be a commander from the 10th day of August, 1898, vice Bowman H. McCalla, advanced and promoted," thereby assented to and confirmed the advancement and promotion of McCalla.
As before seen, Captain McCalla, on August 10, 1898, had suffered a net loss of only six numbers by reason of his sentence. By operation of the "Personnel act" of March 3, 1899, Captains Andrade, Lowe, and Robinson, formerly engineers with relative rank below that of Captain McCalla
at the time his sentence took effect, were placed in the line above McCalla, your Department supposing that his advancement of August 10, 1898, had failed. Under date of March 9, 1900, the Secretary of the Navy, in a letter addressed to the Attorney-General, recommended that a pardon be granted Captain McCalla. It is apparent that your Department did not then know of the above-mentioned opinion of this Department concerning the advancement and promotion of McCalla on August 10, 1898, for, after reviewing briefly the history of the case, the Secretary said:
"Captain McCalla's name at this time appears upon the Navy list as No. 61, immediately below that of Capt. Charles H. Davis, instead of as No. 52, immediately below that of Capt. Caspar F. Goodrich, as would have been the case in the natural order of advancement if Captain McCalla had suffered no loss of numbers.
"In a letter dated August 10, 1898, the Department invited the attention of the President to the case of certain officers of the Navy whose services in Cuban waters during the war with Spain were regarded as so meritorious as to entitle them to prompt recognition by the Government, and recommended advancement in rank as a suitable measure of reward. In the case of Captain (then Commander) McCalla, the Department's recommendation was as follows:
"Commander Bowman H. McCalla, commanding the Marblehead, for eminent and conspicuous conduct in battle off the coast of Cuba, to be restored by the President to his original place on the Navy list, so that his name shall appear on the list of captains next after that of Capt. Caspar F. Goodrich."
"This recommendation was approved by the President, and Captain McCalla was subsequently nominated accordingly, but the nomination was not confirmed by the Senate.
"In view of the fact that if this nomination had been confirmed Captain McCalla would have been thereby restored to his original place on the Navy list; in consideration of the gallant conduct and efficient services rendered by this officer during the recent war with Spain, I have the honor to recommend that a full and unconditional pardon be issued to Captain McCalla."
This letter of recommendation was transmitted to the President, and on March 12 an unconditional pardon was granted, the pardon setting forth that-
"Whereas, the services of the said Bowman H. McCalla in Cuban waters during the war with Spain are regarded as so meritorious as to entitle them to prompt recognition by the Government; and,
"Whereas the Secretary of the Navy recommends that the said Bowman H. McCalla be pardoned:
"Now, therefore, be it known that I, William McKinley, President of the United States of America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, do hereby grant unto the said Bowman H. McCalla a full and unconditional pardon."
Immediately upon the issuance of this pardon Captain McCalla was restored to the place on the Navy list held by him prior to his trial by court-martial in 1890. He was thus given No. 52 upon the Navy list instead of No. 61, which he bore before the pardon. Subsequently, the attention of your Department was called to the opinion of February 19, 1900, previously referred to, and in conformity with that opinion the Navy Register was corrected so as to show that McCalla attained his old position on the list and a captaincy on August 10, 1898, the date of the recess advancement above referred to. A commission as captain, dated April 22, 1901, but taking effect from August 10, 1898, was issued to him accordingly. On March 8, 1901, Captain McCalla was advanced three numbers in the grade of captain for eminent and conspicuous conduct in battle upon recommendation of your Department, nomination by the President, and confirmation by the Senate, thus placing him three numbers higher on the Navy list than he was before his trial by courtmartial, which relative position: he now holds. The nomination was in the following terms: "I nominate Capt. Bowman H. McCalla to be advanced three numbers in rank, from the 8th day of March, 1901, for eminent and conspicuous conduct in battles engaged in by relief column under ViceAdmiral Seymour, to take rank next after Capt. Richard P. Leary,"