[C. M. O. 3—1917]

The question has repeatedly been raised as to the power of Congress to control the president's power of appointment which, under the Constitution, is subject only to the concurrence of the Senate. The authorities upon this question establish the following:

First. That Congress has not the power to designate an appointee by name (18 Op. Atty. Gen., 18; United States v. Ferreira, 13 How., 40).

Second. That Congress has not the power to require the appointment of an Individual who stands highest upon a competitive examination (13 Op. Atty. Gen., 516).

Third. That Congress cannot require the President to appoint to a vacancy in the military service the senior officer in the next lower grade (30 Op. Atty. Gen., 177).

The above propositions all rest upon the underlying principle that "the power of appointment of officers, the duty to appoint whom devolves directly on the President and Senate by virtue of the Constitution itself, is one involving a discretion not entirely to be controlled by Congress. This power is from a source above Congress, namely, the Constitution, and cannot be destroyed by the inferior power" (30 Op. Atty. Gen., 177). The foregoing authorities, therefore, if they do not clearly define the respective powers of Congress and the President, at least leave no doubt that Congress has not the power to require the appointment of a particular individual either by name or description. This, of course, applies equally to promotions, for a promotion is "an appointment to a higher office" (30 Op. Atty. Gen., 177).

As to the respective powers of Congress and the President, the Attorney General has said:

"Although the appointing power alone can designate an individual for office, either Congress, by direct legislation, or the President, by authority derived from Congress, can prescribe qualifications and require that the designation shall be made out of a class of persons ascertained by proper tests to have those qualifications; *** (13 Op. Atty. Gen. 516; see

also 26 Op. Atty. Gen. 502).

In the matter of the advancement of staff officers in grade Congress has not merely limited the President's power of selection to a class [P. 8] of officers, as, for example, it might have done by requiring that the vacancies in higher grades should be filled from among officers in the next lower grade, but instead has proceeded to the very point of requiring that a particular individual be appointed to fill a vacancy existing in a higher grade. In other words, Congress has done precisely what the Attorney General stated in an opinion "it is not supposable" that it would do, namely, required of canditates for higher offices in the Navy "qualifications unattainable by a sufficient number to afford ample room for choice"-for obviously only one officer can be the "highest" member in his grade or "the next officer in rank" to the grade in which a vacancy occurs, and Congress has said with reference to vacancies in the staff corps, that "the highest members in each corps" shall be appointed to vacancies therein; and on the general subject has said that "the next officer in rank" shall be promoted to the place of a retired officer. There is hardly room for doubt that such legislation is necessarily an attempted infringement upon the constitutional power of the President, and therefore cannot be binding upon him.

Accordingly, the Judge Advocate General concluded that the advancement of staff officers to higher offices with or without advancement in rank is a matter resting entirely within the constitutional power of the President, subject to such regulations by Congress as may not deprive him of the right to exercise his individual judgement and will; that the attempted regulations of Congress have gone beyond this point and are, therefore, void as binding regulations; and that the President may make such advancements by selection should he, as a matter of policy, deem such action expedient (File 28687-4: 4, J. A. G., Sept. 12, 1916). The Attorney General, in an opinion dated December 27, 1916, sustained the opinion of the Judge Advocate General on both of the above propositions.

(2) It was the opinion of the Judge Advocate General that, where advancement in rank in a staff corps involves promotion in grade, the officers selected for such advancement are subject in all respects to the examinations prescribed by sections 1493 and 1496 of the Revised Statutes (File 28687-4: 5, J. A. G., Nov. 23, 1916).

C. M. 0.4-1917

[P. 1] ACTION OF CONVENING AUTHORITY: SHOULD, IN CASES INVOLVING THE DISMISSAL OF AN OFFICER, NOTE THE REFERENCE OF THE RECORD TO THE SECRETARY OF THE NAVY FOR TRANSMISSION TO THE PRESIDENT.

Lieutenant (junior grade) Anson A. Merrick, U. S. Navy, was tried by general court martial on January 24, 1917, on board the U. S. S. North Dakota, at the Navy Yard, Philadelphia, Pa., by order of the Commander, Reserve Force, U. S. Atlantic Fleet, and was found guilty of the following charges, the specifications of which were "proved by plea."

Charge I.-Absence from station and duty after leave had expired (one specification).

Charge II.-Drunkenness (one specification).

SENTENCE

"The court, therefore, sentences him, Lieutenant (junior grade) Anson A. Merrick, United States Navy, to be dismissed from the United States naval service."

ACTION OF THE CONVENING AUTHORITY

The convening authority approved the proceedings, findings, and sentence of the general court martial in the foregoing case of Lieutenant (Junior grade) Anson A. Merrick, U. S. Navy, on January 24, 1917.

ACTION OF THE SECRETARY OF THE NAVY

This officer was, but a short time ago, previously convicted of "absence from station and duty after leave had expired," (C. M. O. 39, 1916). The present offenses, combined with his previous one, indicate that he is unworthy of the trust and confidence which is reposed in a commissioned officer. Accordingly the Department, on February 5, 1917, approved the proceedings, findings, and sentence of the general court martial in the foregoing case of Lieutenant (Junior grade) Anson A. Merrick, U. S. Navy.

ACTION OF THE PRESIDENT

In conformity with the provisions of article 53 of the Articles for the Government of the Navy (section 1624 of the Revised Statutes), the record was submitted to the President of the United States, who, on February 6, 1917, confirmed the sentence of the court.

[P. 2] It was noted that the convening authority in his action on the foregoing case, which involves the dismissal of an officer from the naval service, failed to embody in said action the reference of the record to the Secretary of the Navy for transmission to the President of the United States as required by article 53 of the Articles for the Government of the Navy (section 1624 of the Revised Statutes), and as prescribed by Forms of Procedure, 1910, p. 53. var. 8.

C. M. O. 5-1917

[P. 1] 1. PRIVILEGED COMMUNICATIONS: LETTERS FROM A PERSON TO HIS

ATTORNEY IN FACT DO NOT COME WITHIN THIS CLASS.

2. ADMISSIONS IN OPEN COURT: ESTABLISH THE FACTS SET FORTH IN SPECIFICATIONS AND THUS ADMITTED BY THE ACCUSED, AND DISPENSE WITH THE NECESSITY OF EVIDENCE TO ESTABLISH SAME.

3. PUBLICATION OF A LIBELOUS LETTER: WHAT CONSTITUTES SAME. 4. "SUPERIOR OFFICER: TERM INCLUDES AN OFFICER "SUPERIOR IN RANK, AND DOES NOT REQUIRE ASSOCIATION ON DUTY IN THE HIERARCHY OF COMMAND.

5. JUSTIFIABLE CAUSE: WHAT THE LAW RECOGNIZES AS SUCH FOR THE EXPRESSION IN WRITING OF UNFAVORABLE OPINIONS OF OTHERS.

Lieutenant Walter B. Decker, United States Navy, was tried by general court martial on September 22, 1916, at the Navy Yard, Boston, Mass., by order of the Secretary of the Navy, upon the following charges:

[C. M. O. 5—1917]

Charge I-Conduct to the prejudice of good order and discipline (one specification alleging that the accused did, in reference to a disagreement between himself and a superior officer in regard to a disputed claim, “write, send, and publish, or cause to be sent and published without justifiable cause," to his (the accused's) father, and to a law firm, and to the Navy Department, a letter containing "abusive, disrespectful, and defamatory" language of and about the said superior officer).

Charge II.-Conduct unbecoming an officer and a gentleman (two specifications alleging that certain threatening letters were written to a superior officer of the accused at the instigation of the accused).

FACTS

Briefly stated, the facts in the case are as follows: The accused claimed that an officer, his senior in rank, was indebted to him in the sum of fiftyseven dollars, while the latter contended that this was not a just debt.

The accused, instead of taking the matter up in a civil court authorized to pass upon the rights and liabilities of the respective parties-which is a proper procedure for persons in the naval service, as well as persons in civil life, to pursue under such circumstances-wrote a letter of instructions to his father, at the same time appointing his father as attorney in fact to collect the claim in question.

The letter of instructions written by claimant to his attorney in fact is rather lengthy and need not be quoted in detail. Briefly stated, it refers to an "informal contract" for the sublease of a house made by the writer with his superior officer; [P. 2] expresses the writer's doubt "if there is a person in the service who has the least bit of regard or respect for" said superior officer, and states "furthermore he is the most despised"; indicates that the writer would not report the matter to the Navy Department "except under great pressure I wouldn't even want him (said superior officer) to know I was contemplating it for he might get mulish and call any bluff"; suggests that "a letter from a lawyer" to the writer's superior officer "would sort of stir him up," and expresses a doubt as to whether said officer "would like to go to court and be publicly branded as a man who does not live up to his agreements"; states that his superior officer "stands the chance of losing a darn sight more than" the writer, and that "the news once started will spread like wildfire that he isn't a man to be trusted"; indicates that the writer wants his agent "to find out from a lawyer whether or not that agreement is valid"; and concludes by stating "if it isn't we are of course up against it."

In furtherance of the above the accused's father-his attorney in fact or agent-employed a lawyer, who addressed a threatening letter to the accused's superior officer. Later the attorney in fact himself addressed a threatening letter to said officer in pursuance of the above claim.

Finally, the matter was reported to the Navy Department by the lawyer employed by the accused's attorney in fact and the serious nature which the controversy between the accused and his superior officer had assumed compelled the Department to convene a court of inquiry, in consequence of which charges and specifications were preferred against both the officer whose case is now under consideration and the other party to the controversy.

Charge I is based upon the letter written by the accused to his father, his attorney in fact. Charge II, specifications 1 and 2, respectively, are based upon the letter written by the lawyer employed by the attorney in fact, and the letter written by the attorney in fact himself to the superior officer of the accused.

DEFENSE

The accused at the outset of the trial admitted the authorship of the letter to his father (attorney in fact), which was set out in full in the specification under charge I, but reserved the right to object to the admission of the letter itself in evidence. (This objection was subsequently made by the accused and sustained by the court.)

The whole defense of the accused was based substantially upon the following points:

(a) That the letter written by him to his attorney in fact is a privileged communication and protects him from responsibility therefor.

[O. M. O. 5-1917]

[P. 3] (b) That he is not answerable for the subsequent action taken by his attorney in fact and the lawyer employed by the latter.

FINDINGS

The court most fully and honorably acquitted the accused of both charges. RETURNED FOR REVISION

The Department, on October 7, 1916, returned the record in this case to the court for a reconsideration of its findings. In its letter returning the record the Department invited particular attention to the following points:

(a) Proof was unnecessary that the accused wrote the letter set forth under charge I, as he admitted authorship thereof, after which evidence on the part of the judge advocate to establish the fact admitted would have been not only unnecessary but objectionable.

(b) Even though said letter had otherwise been privileged, it would have lost that character the moment that the accused by counsel in open court formally admitted authorship thereof, thus himself divulging the full contents of the letter, the original of which he stated was in his possesion and was exhibited by him to the court.

(c) Said letter never was privileged, because of its illegal nature, which excluded it from privilege no matter to whom addressed. Moreover, aside from this feature, it was addressed to an attorney in fact, not an attorney at law, and letters from a person to his attorney in fact do not come within the class of privileged communications, which is also true of letters to a member of the writer's family.

(d) The letters set forth under charge II were plainly written at the instigation of the accused, as disclosed by his letter set forth under charge I. Furthermore, when the accused was furnished with copies of said letters, there is no evidence that he immediately or at any time thereafter disavowed same, and promptly advised the addressee that they were written without his authority and met with his disapproval. It must, therefore, be accepted as against the accused that he not only instigated the writing of said letters, but tacitly approved thereof when copies were furnished him.

(e) That it was the purpose of the accused to attempt the collection of his claim by threats in preference to invoking proper legal procedings is disclosed by his letter set forth under charge I, and that his agent and lawyer both so understood his instructions is conclusively shown by the fact that instead of instituting legal proceedings as they might have done, regardless [P. 4] of the adverse party's whereabouts, they proceeded to write threatening letters in violation of the New York statutes (said letters were written in New York), in an attempt to coerce settlement of a claim, the validity of which had not been established, and which was certainly disputed by the adverse party.

FINDINGS IN REVISION

The court decided "respectfully to adhere to its former findings."

RETURNED FOR REVISION

The Department on October 30, 1916, again returned the record to the court for reconsideration of its findings and acquittal upon both charges, further discussing various points covered in its previous letter, explaining the Department's uncertainty "as to the exact feature which governed the court in its finding." and directing that "should the particular feature which has governed the court in its previous finding not be adequately covered in the above and should the court therefore still adhere to its previous finding, that it spread upon the record for the information of the Department the reasons complete and in detail which governed it in arriving at its finding.”

FINDINGS IN REVISION

The court again decided "to respectfully adhere to its original findings and most full and honorable acquittal" of both charges, and, pursuant to the Depart

[C. M. O. 5-1917]

ment's instructions, recorded the reasons for its conclusions fully and in detail. The following appeared to be the principal points:

(a) That in its opinion the letter written by the accused and forming the basis of charge I was a privileged communication.

(b) That, inasmuch as the admission of authorship by the accused was qualified by the right of claiming privilege, the letter in question was never properly before the court.

(c) That the accused was not responsible for the publication of his letter by the addressee.

(d) That the officer alleged to have been defamed therein was not the "superior officer" of the accused, being merely senior to the accused in the same grade and performing duty on a different station.

(e) That the alleged defamatory letter was not written and sent by the accused "without justifiable cause."

RETURNED FOR REVISION

The Department, on December 9, 1916, again returned the record to the court for the purpose of informing it definitely upon [P. 5] the various questions of law presented by the above points on which the court based its findings; and, in this connection, invited the court's attention to the propriety of its accepting the advice of the Department on questions of law, and cited C. M. O. 25, 1916, 4, to this effect. The Department's letter brought out the following:

(1) That the proposition stated in the Department's letter of October 7, 1916, that

"Letters from a person to his attorney in fact do not come within the class of privileged communications."

is a correct statement of the law on the subject.

In the case of Collins v. Johnson (16 Ga. 458), which is a leading case on this point, the question was presented whether information acquired by an attorney was privileged where he was in fact an attorney at law and employed as such, but the particular transaction which was the subject of inquiry was not necessarily such as called for an exercise of his functions as an attorney at law. The court held that, with reference to the transaction in question, the attorney acted in the capacity of an attorney in fact rather than in his capacity of an attorney at law, and therefore might be required to disclose the information so obtained.

In 26 Ann. Cas. 13 (note to Collins v. Hoffman), the following appears:

"It has been held that communications made to an attorney acting merely in the capacity of an attorney in fact are not privileged."

To the same effect is Cyc. 2365, which reads as follows:

"Neither is there any privilege as to communications in reference to a matter in which the attorney acts, not in his professional capacity, but merely as an agent or attorney in fact."

In Greenleaf on Evidence (16th edition, Wigmore), it is stated (secs. 237, 239):

"And, in the first place, in regard to professional communciations, the reason of public policy, which excludes them, applies solely, as we shall presently show, to those between a client and his legal adviser.

* * *

In regard to the persons to whom the communications must have been made in order to be thus protected, they must have been made to the counsel, attorney, or solicitor, acting, for the time being, in the character of legal adviser."

In Wigmore on Evidence, sections 2286, 2300, it is stated:

* * *

"In general, then, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege. This rule is not questioned today. Accordingly, a confidential communication to a clerk, to a trustee, to a commercial agency, to a banker, to a journalist, or to any other person not holding [P. 6] one of the specific relations hereafter considered, is not privileged from disclosure. There is no ground for encouraging the relation