ADDENDA. APPOINTMENTS, REINSTATEMENT, ETC. NOTES.-Appointments to office can be made only by the Executive branch of the Government in the manner provided by the Constitution (Art. II, §2), and not by Congressional enactment.-C. C., XV, 151, Wood's case. It is necessary that the President should nominate, the Senate advise and consent, and that, in pursuance of such nomination and confirmation the appointment should actually be made. The nomination and confirmation do not divest the President of the power to withhold the appointment.-Op. IV, 31, 218. The appointment of a commissioned officer is not perfected, and is entirely within the power of the President until the commission is issued.-Op. IX, 297; XIII, 44; XIV, 344, C. C. V., 97. When a commission has been signed by the President the appointment is complete, and the commission is complete when the seal of the United States has been affixed.-1 Cranch, Curtis' edition 377, Marbury's case. The Senate cannot originate an appointment; its constitutional action is confined to a simple affirmation or rejection of the nomination, and it fails when they disagree. May suggest limitations or conditions, but cannot vary the nomination. No appointment can be made except on the President's nomination agreed to without qualification or alteration.-Op. III, 189. When a person appointed to an office refuses to accept the same, the successor is nominated in the place of the person who has declined, and not in place of the person who had been previously in office.-1 Cranch, Curtis' edition, 377. The President, by and with the advice and consent of the Senate, may, by reappointment and commission, restore lost rank, including seniority, to an officer of the Army or Navy. Cases cited.-Op. VIII, 223 Cushing, Dec. 10, 1856. In the same way he can correct the date of a military appointment, or an error in the date of appointment, or an inadvertence to nominate an officer en. titled to promotion by ten years' service.-Op. III, 307; VIII, 223. The right of a reinstated officer to pay during the time he was out of the serv. ice must depend upon the will of Congress, as expressed in the act authorizing his reinstatement, and not upon the date of his commission.-C. C., XV, 41, Kilburn's case. Commissions signed by his predecessor should be regarded by the President as conclusive evidence of the officers' right to the rank and authority given thereby. While their commissions stand the President should respect them, and in making promotions by seniority have regard for them. If wrong has been sustained, Congress can remedy it by a special relief act empowering the President.-Op, XVI, 583, Devens, Dec. 9, 1880. Where an act directed the Secretary of War to amend the record of an officer dismissed by court-martial, so that he should appear on the rolls and records as if he had been continuously in the service: Held, That it conferred on the President the power to appoint in the usual way. If so appointed the commission should refer to the act, in a proper manner, under which the appointment was made, by nomination and confirmation of the Senate.-Op. XIV, 448, Williams, Aug. 13, 1874; but see Court of Claims, XIV, 573; XV, 22. Congress as a general rule, has authorized the President to restore officers to the retired list without requiring the advice and consent of the Senate. Where they have been reinstated to form a part of the active force of the Army, a dif ferent phraseology has been employed-requiring the advice and consent of the Senate. An officer dismissed by sentence of a court-martial cannot, under section 1228 R. S., be reinstated except by reappointment, confirmed by the Senate. This is a clear recognition that restoration of officers separated from the serv ice under other circumstances, can be accomplished without confirmation of the Senate. The words "inferior officers" used in the Constitution, mean subordinate or inferior orticers in whom, respectively, the power of appointment may be invested by Congress in the President, the courts of law, and the heads of Departments.-C. C., XIV, 573, Collin's case. When the President is authorized by law to reinstate a discharged Army offi cer, he may do so without the advice and consent of the Senate. When he exercises the discretion vested in him by an act of Congress, of reinstating an offi cer, and expresses his will by an order to that effect, the officer acquires a vested right to the office. By antedating an appointment or commission, he cannot create a liability on the part of the Government, but the legislative branch of the Government can.-C. C., XV, 22, Collin's case. Where an officer was of lawful age when nominated but was over age when confirmed, his commission can be issued to him. The Senate could have arrested it.-Op. X, 308, Bates, July 1, 1862. 104 [See also under CIVIL SERVICE, Part III.] PART II. THE MARINE CORPS. ORGANIZATION, ETC., RETIREMENT, PAY AND RATIONS, MILEAGE AND TRANSPORTATION, FORAGE, FUEL, AND QUARTERS. 105 SEC. 1135. The officers of the Quartermaster's Department shall, upon Title 14, Chap. 1. the requisition of the naval or marine officer commanding any detach- Supplies to ment of seamen or marines under orders to act on shore, in co-operation naval and marine with land troops, and during the time such detachment is so acting or detachments. proceeding to act, furnish the officers and seamen with camp equipage, together with transportation for said officers, seamen, and marines, their baggage, provisions, and cannon, and shall furnish the naval officer commanding any such detachment, and his necessary aids, with horses, accouterments, and forage. 15 Dec., 1814, ss. 1, 2, v. 3, p. 151. SEC. 1143. The officers of the Subsistence Department shall, upon the requisition of the naval or marine officer commanding any detachment of seamen or marines under orders to act on shore, in co-operation with the land troops, and during the time such detachment is so acting or proceeding to act, furnish rations to the officers, seamen, and marines of the same. 15 Dec., 1814, s. 1, v. 3, p. 151. Rations to detachments with the Army. SEC. 1342. ART. of WAR 78. Officers of the Marine Corps, detached Title 14, Chap. 5. for service with the Army by order of the President, may be associated Marine and with officers of the Regular Army on courts-martial for the trial of Regular Army offenders belonging to the Regular Army, or to forces of the Marine officers associ Corps so detached; and in such cases the orders of the senior officer of ated on courts. either corps, who may be present and duly authorized, shall be obeyed. 30 June, 1834, s. 2, v. 4, p. 713. SEC. 1342. ART. of WAR 122. If, upon marches, guards, or in quarters, Command when different corps of the Army happen to join or do duty together, the offi- different corps cer highest in rank of the line of the Army, Marine Corps, or Militia, happen to join. by commission, there on duty or in quarters, shall command the whole, and give orders for what is needful to the service, unless otherwise specially directed by the President, according to the nature of the case. 3 March, 1863, s. 27, v. 12, p. 736. 3 March, 1863, s. 25, v. 12, p. 754. Transfer, from military to naval SEC. 1421. Any person enlisted in the military service of the United Title 15, Chap. 1. States may, on application to the Navy Department, approved by the President, be transferred to the Navy or Marine Corps, to serve therein the residue of his term of enlistment, subject to the laws and regula- service. tions for the government of the Navy. But such transfer shall not release him from any indebtedness to the Government, nor, without the consent of the President, from any penalty incurred for a breach of military law. 1 July, 1864, s. 1, v. 13, p. 342. 107 Title 15, Chap. 9. SEC. 1596. The Marine Corps of the United States shall consist of one Number of. commandant, with the rank and pay of a colonel, one colonel, two lieutenant-colonels, four majors, one adjutant and inspector, one paymaster, one quartermaster, two assistant quartermasters, twenty captains, thirty first lieutenants, thirty second lieutenants, one sergeant-major, one quartermaster-sergeant, one drum-major, one principal musician, two hundred sergeants, two hundred and twenty corporals, thirty musicians for a band, sixty drummers, sixty fifers, and twenty-five hundred privates. When number may be increased by promotion. Staff. 25 July, 1861, s. 7, v. 12, p. 275. 2 Mar., 1867, s. 7, v. 14, p. 517. The commandant is stationed at the headquarters of the Marine Corps, Washington, D. C.; is responsible to the Secretary of the Navy for the general efficiency and discipline of the corps, and under his direction issues, through the office of the adjutant and inspector of the corps, orders for the movement of officers and troops, and such general orders and instructions for their guidance as may be necessary. In the absence of the commandant on duty, the business of his office is conducted by the adjutant and inspector, as "by order of the commandant "; in case of his absence on leave, disability, retirement, or death, his duties are performed by the adjutant and inspector, as "by direction of the Secretary of the Navy". SEC. 1597. The provisions of the preceding section shall not preclude the advancement of any officer to a higher grade for distinguished conduct in conflict with the enemy, or for extraordinary heroism in the line of his profession, as authorized by sections sixteen hundred and five and sixteen hundred and seven. 25 July, 1861, s. 2, v. 12, p. 275. SEC. 1598. The staff of the Marine Corps shall be separate from the line. 2 Mar., 1847, s. 3, v. 9, p. 154. 30 June, 1834, s. 6, v. 4, p. 713. Appointments. SEC. 1599. Superseded by act of August 5, 1882, as follows: All the undergraduates at the Naval Academy shall hereafter be designated and called "naval cadets"; and from those who successfully complete the six years' course appointments shall hereafter be made as it is necessary to fill vacancies in the lower grades of the line and engineer corps of the Navy and of the Marine Corps: And provided further, That no greater number of appointments into these grades shall be made each year than shall equal the number of vacancies which has occurred in the same grades during the preceding year; such appointments to be made from the graduates of the year at the conclusion of their six years' course, in the order of merit, as determined by the academic board of the Naval Academy; the assignment to the various corps to be made by the Secretary of the Navy upon the recommendation of the academic board. Credit for volunteer service. Rank and pay 5 Aug., 1882, s. 1, P. E. L., p. 285. SEC. 1600. All marine officers shall be credited with the length of time they may have been employed as officers or enlisted men in the volunteer service of the United States. [See Aug. 5, 1882, Part I, under Volunteer Service.] 2 Mar., 1867, s. 3, v. 14, p. 516. SEC. 1601. The commandant of the Marine Corps shall have the rank of commandant. and pay of a colonel, and shall be appointed by selection by the President from the officers of said corps. Staff rank. 2 Mar., 1867, s. 7, v. 14, p. 517. SEC. 1602. The adjutant and inspector, the paymaster, and the quartermaster shall have the rank of major; each assistant quartermaster shall have the rank of captain. Mar., 1847, s. 3, v. 9, p. 154. 27 Feb 877. 19, p. 244. |