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The question therefore arises under the following provision of the act of March 2, 1867 (14 Stat., 434):
"That in computing the length of service of any officer of the Army in order to determine what allowance and payment of additional or longevity rations he is entitled to, and also in fixing the relative rank to be given to an officer as between himself and others having the same grade and date of appointment and commission, there shall be taken into account and credited to such officer whatever time he may have actually served, whether continuously or at different periods, as a commissioned officer of the United States, either in the Regular Army or, since the nineteenth day of April, eighteen hundred and sixty-one, in the volunteer service, either under appointment or commission from the governor of a State or from the President of the United States; and the provision herein contained as to relative rank shall apply to all appointments that have already been made under the act to fix the military peace establishment of the United States, approved July twenty-eight, eighteen hundred and sixty-six."
The substance of this act was codified in the Revised Statutes in section 1219, and the question of the relative rank between officers "having the same grade and date of appointment and commission" must be determined in accordance with the requirements of said act.
It appears from your statement of facts that until May 17, 1877, Colonel Reid outranked Colonel Goodloe by seniority in commission. On that day Colonel Goodloe was appointed major and paymaster, and subsequently, on May 2, 1894, Colonel Reid was appointed major, adjutant, and inspector. Both of these last-named commissions were appointments by selection at the discretion of the appointing power, and were not promotions under the statutes regulating such promotions. From May 17, 1877, therefore, Colonel Goodloe outranked Colonel Reid by seniority of commission, and on March 3, 1899, under the act of March 3, 1899 (30 Stat., 1008), both officers were promoted to the rank of colonel.
If the promotion of the two officers in question on March 3, 1899, gives them the "same grade and date of appoint
ment and commission," then it is obvious that Colonel Reid outranks Colonel Goodloe, inasmuch as Colonel Reid was commissioned a second lieutenant five years prior to Colonel Goodloe. If, on the contrary, such promotion on March 3, 1899, is not to be regarded as an "appointment" within Revised Statutes, 1219, then the relative rank of the two officers as it existed between March 17, 1877, to March 3, 1899, remains unaffected.
This question has already been considered by this Department, and made the subject of official opinions. On February 21, 1881, upon the request of the Secretary of War, Attorney-General Devens (17 Opin., 34), held that a promotion was an "appointment" within the meaning of the act of Congress already cited. As this opinion was opposed to the practice of the War Department as it had therefore existed since the passage of the act, the Secretary of War, on May 6, 1881, requested this Department to reconsider the question. This Department, in an opinion by Attorney-General MacVeagh (17 Opin., 196), reconsidered its former opinion, and reversed the conclusion therein reached. The conclusion of that opinion is thus stated by AttorneyGeneral MacVeagh:
"I am constrained, therefore, to advise you that the word 'appointment' in section 1219 of the Revised Statutes applies only to the original entry of the officer into the regular service, or subsequent appointment by selection, but that it does not apply to promotions by seniority as defined in the Regulations of the Army."
This conclusion was reaffirmed by an opinion of AttorneyGeneral Brewster on May 18, 1882 (17 Opin., 362).
It is contended in the brief of argument submitted by Colonel Reid that these opinions of Attorneys-General MacVeagh and Brewster, as well as the legislation which they sought to interpret, should be limited to cases where promotions of two officers claiming precedence by relative rank were in the same department of the service. He contends that inasmuch as their respective lineal ranks by promotion were independent of each other, such promotions must be regarded as having all the force and effect of
"appointments" within the meaning of Revised Statutes,
In my opinion neither the section of the Revised Statutes referred to, nor the two opinions of this Department which interpret it, are thus limited in their application. The section cited does not purport to regulate the relative. rank in the same department of the Army, but is apparently intended to fix the relative rank between the various officers of the different departments of the Army by giving to such officers, where "the same grade and date of appointment and commission" exists, the benefit of seniority in service, whether as a volunteer or regular. To hold that promotions are appointments where the officers thus promoted are in different departments, but are not appointments where they are in the same department, is to narrow the application of the statute by reading into its general provisions a substantial qualification of which its language gives no suggestion.
I presume it is as important to have a method of determining the question of relative rank between officers of different departments as it is between officers of the same department, and I can not conclude that the act of Congress was intended to meet one contingency and ignore the other. The opinions of Attorneys-General MacVeagh and Brewster do not suggest any such distinction. Their opinions had reference to the military establishment of the United States. As Attorney-General MacVeagh clearly said (17 Opin., 197): "As I understand it, a clear and well-defined distinction between appointment and promotion has existed and been recognized in the War Department continuously since the establishment of the Army. Appointment is the selection of persons not now in the Army, as officers of it, or the designation by selection of an officer already in the Army to a vacancy which is not required by the law or the regulations to be filled by promotion according to seniority. Promotion is the advancement of officers already in the Army, according to seniority, to vacancies happening in the different arms of the service, and according to rules prescribed by law or by regulations having the force of law.
"I understand also that since the passage of the act of March 2, 1867, it has been the uniform practice of your
Department to fix the relative rank of officers receiving appointments, within the meaning of that term as herein defined, at the time of such appointment; and that their relative rank thus fixed is not thereafter disturbed by any subsequent promotion, but that subsequent promotion and rank is by seniority in the regular service."
In this connection the terms of the act of Congress under which Colonel Goodloe and Colonel Reid were promoted are not without force. The provision reads:
"That the vacancies created by this act in the departments of the adjutant and inspector and paymaster shall be filled first by promotion according to seniority of the officers in each of these departments, respectively, and then by selection from the line officers on the active list of the Marine Corps."
It will thus be seen that there is a distinction in the act between "promotion" and appointments by "selection."
For these reasons, I concur in the opinion which you expressed in ruling upon this case, that "the mere promotion of two officers does not disturb their preexisting relative rank," and that therefore Colonel Goodloe continues to outrank Colonel Reid.
I return you the inclosures of your letter.
The SECRETARY OF THE NAVY.
P. C. KNOX.
CENSUS OFFICE-SPECIAL AGENTS.
The Director of the Census is authorized, under section 7 of the act of March 6, 1902 (32 Stat. 51), to employ special agents temporarily in the Census Office at Washington upon special work not clerical in its nature.
The words "all employees of the Census Office" in section 5 of the above-named act can not be held to apply to special agents or other field employees who may be temporarily assigned to service in the Census Office.
DEPARTMENT OF JUSTICE,
SIR: I have the honor to acknowledge the receipt of your letter of the 21st instant, in which you submit a question as
to the authority of the Director of the Census to employ special agents temporarily in the Census Office at Washington.
By section 4 of the act of March 3, 1899 (30 Stat., 1014), entitled "An act to provide for taking the Twelfth and subsequent Censuses," provision was made for the appointment by the Director of the Census of certain statisticians, clerks, etc., who should constitute the office force employed in the census work, such appointments being "subject to such examination as said Director may prescribe," under section 5 of the act.
By section 6 of the act the collection of the information. required for the census was to be made by supervisors, enumerators, and special agents, who were to constitute the field force employed in the census work, and whose appointment was not subject to any examination.
Section 17 of the act, after fixing the compensation to be paid to special agents, provided "that no pay or allowance in lieu of subsistence shall be allowed special agents when employed in the Census Office on other than the special work committed to them, and no appointments of special agents shall be made for clerical work."
The act of March 6, 1902, entitled "An act to provide for a permanent Census Office" (32 Stat. 51), provides, in section 4, for the office force of the Permanent Census Office thereby established. The "permanent clerical force in the Census Office" thus provided for is by section 5 brought within the operation of the civil-service law. No reference. is made to special agents in this connection.
By section 7 of the act it is provided that "for the purpose of securing the statistics required by this section the Director of the Census may appoint special agents when necessary," to be compensated as thereinafter provided, and by section 10 the provision of section 17 of the act of 1899, above referred to, is reenacted in totidem verbis. No provision is made in the act for the examination of special agents, and they are not brought within the operation of the civil-service law.
In reenacting the provision of section 17 of the prior act, "that no pay or allowance in lieu of subsistence shall be