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other officer at West Point would be a better instructor in military tactics, still he must assign the commandant of cadets to said immediate duty.

As again illustrative of the restrictions placed upon the powers of the President to select officers for responsible positions of command, attention is invited to section 1542, Revised Statutes, which does not permit the President to select a commandant of a navy-yard from officers below the grade of commander no matter how well qualified he may believe the officer to be for that work.

Attention is also invited to section 6 of the act of February 2, 1901, in which the officers of the Artillery Corps were assignable to dnty either in the field or coast artillery as the President, at his discretion, may direct, whereas by the act of January 25, 1907, this discretion to transfer officers from the coast or field artillery from time to time is taken away from the President. The assignment to duty in either branch must be permanent.

One of the most recent acts of legislation on the part of the Congress which approximates very closely to that contained in the proviso in the naval appropriation bill is the act entitled “An act reorganizing and increasing the efficiency of the artillery of the United States," approved January 25, 1907. (34 Stat. L., p. 861.)

In the act entitled “An act increasing the efficiency of the permanent military establishment of the United States," approved February 2, 1901, it appeared in section that the artillery corps was divided into the coast and field artillery, the duties of each being defined with a proviso, however, that this shall not be construed to limit the authority of the Secretary of War to order coast artillery to any duty which the public service demands, or to prevent the use of machine and other field guns by any other arm of the service under the direction of the Secretary of War. This proviso in section 4 of the act of 1901 was abrogated by the act of 1907, above referred to, which act clearly separated the coast artillery from the field artillery and directed that each should perform certain specific duty outlined in said act. This is exactly similar legislation to that embodied in the appropriation bill, to wit, certain specific duty is assigned to a part of the Marine Corps in the naval service in the same manner as a certain specific duty is assigned to the coast artillery as a branch of the army.

Attention is invited to the folloing excerpt from the Opinions of the Attorneys-General, Vol. XIV, page 164, in which the then Attorney-General, Hon. George H. Williams, in an opinion to the Secretary of War, stated as follows (p. 166):

Respecting promotions in the army, I have been unable, after careful examination, to find a single instance where the power of Congress to prescribe the rule therefor has been even doubted. But in filling original vacancies or offices in the army newly created, the opinion was advanced by President Monroe in a message to the Senate, dated April 12, 1822, that“Congress has no right under the Constitution to impose any restraint by law on the power granted to the President so as to prevent his making a free selection of proper persons for these offices from the whole body of his fellowcitizens.". The Senate, however, disagreed with that opinion, maintaining that as the Constitution conferred upon Congress power to “make rules for the government and regulation of" the army, that body had a right to make any which it thought would benefit the public service, and to fix the rule both as to promotions and appointments


in the army.

In addition to the foregoing citations, which show the character of legislation enacted by Congress and the views of the Attorney-General thereon, attention is invited to the fact that the constitutionality of

said legislation has been passed upon by the Supreme Court of the United States. In Tarble's case (13 Wall., 397), the Supreme Court discussed the powers of the Congress under Article I, section 8, of the Constitution. Special attention is invited to the following excerpt taken from said decision (p. 408):

Now, among the powers assigned to the National Government, is the power “to raise and support armies," and the power “to provide for the government and regulation of the land and naval forces." The execution of these powers falls within the line of its duties, and its control over the subject is plenary and exclusive. It can deterınine, without question from any state authority, how the armies shall be raised, whether by voluntary enlistment or forced drait, the age at which the soldier shall be received and the period for which he shall be taken, the compensation he sball be allowed, and the service to which he shall be assigned. And it can provide the rules for the government and regulation of the forces after they are raised, define what shall constitute military offenses, and prescribe their punishment.

In the above citation the court intended that the words “National Government" should apply to the Congress,” since it quoted as the powers assigned to the National Government the very powers which by Article 1, section 8, of the Constitution are vested solely and alone in the Congress.

It must therefore be conceded that not only has Congress enacted legislation exactly similar to that proposed in the naval appropriation bill now pending, and that its right so to do has been concurred in by the Attorney-General of the United States, but also that its constitutionality has been passed upon and decided affirmatively by the Supreme Court of the United States.

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(No. 16.)


Washington, May 14, 1908. Sir: In compliance with request contained in your letter of the 13th instant, I have the honor to submit herewith the following statement respecting the bill (H. R. 8276) "placing John W. Saville, passed assistant engineer, U. S. Navy, on the retired list with an advanced rank:

On January 21, 1871, Passed Assistant Engineer Saville was transferred to the retired list as a second assistant engineer (assistant engineer) for physical disability, which was due to an incident of the service.

By an act of Congress passed in 1884 he was commissioned a passed assistant engineer on the retired list from June 19, 1884. He was entitled to promotion to the grade of first assistant engineer (passed assistant engineer) prior to the date of his retirement, but could not be promoted thereto on account of the physical disqualification, which was the cause of his retirement. It would appear that the act of Congress making him a passed assistant engineer on the retired list was merely to give him the rank to which he was entitled before the date of his retirement.

Mr. Saville was excluded from the benefits conferred by a clause of the naval act of June 29, 1906, relating to the advancement of retired officers by the fact that he received an advance of grade since the date of his retirement * by virtue of the provisions of a special act of Congress” (act of June 18, 1884, 23 Stats., p. 45).

While believing that the question whether the clause of the act of June 29, 1906, above mentioned, should be extended by special acts applicable to individual cases, is one that should appropriately be left to the determination of the Congress. If it be determined that such extension should be so made, this department recommends that the act under consideration, for the relief of Mr. Saville, be favorably considered. Very respectfully,


Acting Secretary.
Hon. GEORGE E. Foss,
Chairman Committee on Naval Affairs,

House of Representatives.



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