918. Grade of second lieutenant.-Vacancies in the grade of second lieutentant occurring in any fiscal year shall be filled by appointment in the following order, namely: First, of cadets graduated from the United States Military Academy during that fiscal year;1 second, of enlisted men whose fitness for promotion shall have been determined by competitive examination; 2 third, of candidates from civil life between the ages of twenty-one and twenty-seven years." The President is authorized to make rules and regulations to carry these provisions into effect. Act of Mar. 3, 1911 (36 Stat. 1045).

919. Same-Promotion of noncommissioned officers.-Noncommissioned officers may, under regulations established by the Secretary of War, be examined by a board of four officers, as to their qualifications for the duties of commissioned officers in the line of the Army, and shall be eligible for appointment as second lieutenants in any corps of the line for which they may be found so qualified. If there be no vacancy in such corps, any noncommissioned officer so found qualified for a commission therein may be attached to it by the President as a supernumerary officer, by brevet of second lieutenant, subject to the provisions of section twelve hundred and fifteen. Sec. 1214, R. S.

920. Same-Of enlisted men.-The President is hereby authorized to prescribe a system of examination of enlisted men of the Army, by such boards as may be established by him, to determine their

'As to the appointment of cadets see paragraphs 1154 and 1155, post; and as to the limitations and appointment of cadets who never graduated see paragraphs 1162 and 1164, post. As to appointment as second lieutenants of Engineers see paragraphs 784 and 786, ante. As to appointments in the Medical Corps see paragraph 732, ante.

As to regulations governing the appointment of enlisted men see paragraphs 27 to 33, A. R., 1913. See also the next five paragraphs.

'As to regulations governing the appointment of candidates from civil life see paragraphs 34-37, A. R., 1913.

fitness for promotion to the grade of second lieutenant: Provided, That all unmarried soldiers under thirty years of age, who are citizens of the United States, are physically sound, who have served honorably not less than two years in the Army, and who have borne a good moral character before and after enlistment, may compete for promotion under any system authorized by this act. Act of July 30, 1892 (27 Stat. 336).

921. Examination board.-The members and recorder of such boards as may be established by the President, under the provisions of the preceding section, shall be sworn in every case to discharge their duties honestly and faithfully; and the boards may examine witnesses and take depositions, for which purposes they shall have such powers of a court of inquiry as may be necessary. Sec. 2, id.

922. Filling vacancies.-The vacancies in the grade of second lieutenant heretofore filled by the promotion of meritorious noncommissioned officers of the Army, under the provisions of section three of the act approved June eighteenth, eighteen hundred and seventyeight, shall be filled by the appointment of competitors favorably recommended under this act, in the order of merit established by the final examination. Sec. 3, id.

923. Certificates of eligibility.-Each man who passes the final examination shall receive a certificate of eligibility, setting forth the subjects in which he is proficient and the especial grounds upon which the recommendation is based: Provided, That not more than two examinations shall be accorded to the same competitor. Sec. 3,id.

924. Same-Vacation of.-All rights and privileges arising from a certificate of eligibility may be vacated by sentence of a courtmartial, but no soldier, while holding the privileges of a certificate, shall be brought before a garrison or regimental court-martial or summary court. Sec. 4, id.

925. Commissions-Execution of.-Hereafter the commissions of all officers under the direction and control of the Secretary of the Treasury, the Secretary of War, the Secretary of the Navy, and the Secretary of Agriculture shall be made out and recorded in the respective Departments under which they are to serve, and the Department seal affixed thereto, any laws to the contrary notwithstanding: Provided, That the said seal shall not be affixed to any such commission before the same shall have been signed by the President of the United States. Act of Mar. 28, 1896 (29 Stat. 75).

'Garrison and regimental courts-martial have been abolished and their jurisdiction transferred to the special courts-martial provided for by the act of March 2, 1913 (37 Stat. 722). See pages 614-616.

"A commission, whatever its form, is but evidence of the fact that the Presi dent has exercised his constitutional power of appointment; there is no provision of law requiring a specified form of commission to be issued to officers in the military service. (O'Shea v. U. S., 28 Ct. Cls., 392.)

926. Appointments.-Hereafter all appointments in the line of the Army shall be by commission in an arm of the service and not by commission in any particular regiment.1 Sec. 2, Act of Oct. 1, 1890 (26 Stat. 562).

PROMOTIONS.

927. Seniority. Hereafter promotions to every grade in the Army below the rank of brigadier-general, throughout each arm, corps, or department of the service, shall, subject to the examination hereinafter provided for, be made according to seniority in the next lower grade of that arm, corps, or department. Sec. 1, id.

928. Same. Hereafter all vacancies occurring in the cavalry, artillery, and infantry above the grade of second lieutenant shall, subject to the examination now required by law, be filled by promotion according to seniority from the next lower grade in each arm. Sec. 2, Act of Apr. 26, 1898 (30 Stat. 364).

'An appointment or commission, in order to take effect at all, must be accepted; but when accepted, it takes effect as of and from its date, i. e., the date on which it is completed by the signature of the appointing power, or that as and from which it purports in terms to be operative. (Dig. Opin. J. A. G., 1912, p. 801, 6a and 7a. See also Marbury v. Madison, 1 Cranch, 137; U. S. v. Bradley, 10 Pet., 304; U. S. v. Le Baron, 19 How., 78; Montgomery v. U. S., 5 Ct. Cls., 97. See also chapter entitled "The Executive.")

The power of the President to fill a vacancy in the Army during a recess of the Senate may be exercised by a letter from the Secretary of War, and such a letter may constitute his commission, there being no law which prescribes the form of a military commission. (O'Shea v. U. S., 28 Ct. Cls., 392.) Where the President is authorized by law to reinstate a discharged Army officer, he may do so without the advice and consent of the Senate. (Collins v. U. S., 14 Ct. Cls. 22; Dig. Opin. J. A. G., 150.) An officer of the Army or Navy of the United States does not hold his office by contract, but at the will of the sovereign power. (Crenshaw v. U. S., 134 U. S., 98.) For statutory provisions respecting appointments to the lowest grades in the several staff corps see the chapters so entitled.

So much of section 1218, Revised Statutes, as amended by the act of May 13, 1884 (23 Stat. 21), as requires that "No person who held a commission in the Army or Navy of the United States at the beginning of the late rebellion, and afterwards served in any capacity in the military, naval, or civil service of the so-called Confederate States, or of either of the States in insurrection during the late rebellion, shall be appointed to any position in the Army or Navy of the United States," was repealed by the act of March 31, 1896 (29 Stat. 235.) For statutory provisions regulating the appointment of officers of volunteers to the Army, see section 28 of the act of February 2, 1901 (31 Stat. 755), 1101.

The act of October 1, 1890 (26 Stat. 562), contained the requirement that all officers above the grade of second lieutenant in the line of the Army should, "subject to such examination, be entitled to promotion in accordance with existing laws and regulations." The effect of this provision was to continue the operation of the rule of regimental promotion in respect to all officers of the line above the grade of second lieutenant. The rule of lineal promotion was made general in its apllication by section 2 of the act of April 26. 1898 (30 Stat. 364). Seniority of rank alone, in the military service, gives no right to promotion. Physical, mental, and moral fitness are required. (Steinmetz v. U. S., 33 Ct. Cls., 404.) The act of October, 1890, did not make it obligatory upon the President to promote the senior officer to a vacancy existing in the next higher grade if the record of the officer, in his opinion. had been such as to indicate that he was disqualified for promotion. (30 Opin. Atty. Gen., 177.)

8

'Appointment and promotion of commissioned officers.—Notices of appointments and promotions are issued by the War Department, through the AdjutantGeneral of the Army. (Par. 21, A. R. 1913.)

HISTORICAL NOTE.

The rule of promotion in the line of the Army, as stated in paragraph 22 of the Regulations of 1889, required that "promotions to the rank of captain will be made regimentally, to major, lieutenant colonel, and colonel, according to arm of service." This rule, which was replaced by the act of October 1. 1890 (par. 1271, supra), had its origin in an order of the Secretary of War, dated May 26, 1801, which declared that "promotions to the rank of captain shall be made regimentally, and to the rank of major and lieutenant colonel in the lines of the artillery and infantry, respectively." This order was supplemented by another, issued on May 7, 1808, making the above rule for promotion in the infantry and artillery applicable to the cavalry and riflemen.

The earliest Congressional action on the subject of promotion in the Army is contained in the fifth section of the act of June 26, 1812 (2 Stat. 764), which provided that thereafter "the promotion shall be made through the lines of artillerists, light artillery, dragoons, riflemen, and infantry, respectively, according to established rule." The rule therein referred to is that which was established by the Executive order as above stated, and the effect of the statute was to give the order a legislative sanction. Subsequently, by section 12 of the act of March 30, 1814 (3 Stat. 113), it was provided “that from and after the passage of this act promotions may be made through the whole Army in its several lines of light artillery, light dragoons, artillery, infantry, and riflemen, respectively." Since the enactment of this last provision, which continued in force down to the revision of the statutes, promotions to the rank of captain have uniformly been made regimentally, so that the construction given thereto, in practice. has been that it made no change or modification of the previously existing rules. According to this construction (which was acted upon for about sixty years) the act of 1814, while it contemplated that promotions should be made in the several lines or arms through the whole Army, and that officers should be promoted only in their respective lines or arms, did not prescribe how promotions within the lines or arms should be made, whether regimentally or lineally. As thus understood-and the language of the act is susceptible of that interpretation-there was no conflict between it and the rule adverted to. Section 1204, Revised Statutes, contains substantially a reenactment of the provision above quoted from the act of 1814. When embodying that provision in the Revised Statutes, it is reasonable to presume that Congress was familiar with the construction which had been placed thereon, and so long acted upon by the executive department, and that if it had been the intention of that body to introduce a different rule on the subject of promotion, different phraseology would have been chosen to signify such design. By adopting the language of the previous statute the fair inference is that its construction was acquiesced in, and that no change in the law of promotion was intended. (17 Opin. Atty. Gen., 65. See also paragraph 987, post.)

929. Examination.-On and after the passage of this Act, every line officer on the active list below the grade of colonel who has lost in lineal rank through the system of regimental promotion in force prior to October first, eighteen hundred and ninety, may, in the discretion. of the President, and subject to examination for promotion as prescribed by law, be advanced to higher grades in his arm up to and including the grade of colonel, in accordance with the rank he would have been entitled to hold had promotion been lineal throughout his arm or corps since the date of his entry into the arm or corps to which he permanently belongs: Provided, That officers advanced to higher grades under the provisions of this Act shall be additional

Appointment to the grade of general officer is made by selection from the Army. (Par. 22, Id.)

Promotions in established staff corps and departments to include the grade of colonel will be made by seniority, subject to the examinations required by law. (Par. 24, Id.)