priate to the office. The act of March 3, 1791 (1 Stat. L., 222), authorized the appointment of a chaplain in case the President might "deem such appointment necessary to the public interest." As the act contemplated a brigade organization, it would appear that the office thus conditionally created was that of a brigade rather than a regimental chaplain. The inclusion of the chaplain in the "general staff," in section 7 of the act of March 5, 1792 (ibid., 242), and March 3, 1795 (ibid., 430), would also seem to indicate the correctness of this view. No provision was made for the services of chaplains in the enactments respecting the militia-acts of May 2, 1792 (ibid., 264), and May 8, 1792 (ibid., 267)—although these statutes are still in force. The office of chaplain was discontinued on October 1, 1796, in conformity to the requirements of the act of May 30, 1796 (ibid., 483), "to ascertain and fix the military establishment of the United States." The acts authorizing the creation of a provisional army, approved May 28, 1798 (ibid., 561), made no provision for the services or compensation of chaplains, but this omission was supplied by a provision for four chaplains in the act of July 16, 1798 (ibid., 604), who were to be attached to the general staff, and were to receive the pay and allowances of majors. No provision was made for these officers, however, in the act of March 3, 1799 (ibid., 749). By the acts of February 2, 1800 (2 ibid., 7), and May 14, 1800 (ibid., 85), the operation of the foregoing enactments was suspended, and the act of March 16, 1802 (ibid., 133), contained no provision for chaplains, or for the procurement of religious services at military posts. The act of April 12 1808 (2 Stat. L. 481, section 7), passed in contemplation of war with England, authorized the appointment of brigade chaplains, and similar provision was made in section 24 of the act of February 6, 1812 (ibid., 671), which conferred upon these officers the pay and allowances of majors of infantry, and this last-named requirement was repeated in section 16 of the act of January 20, 1813 (ibid., 791). The acts of March 3, 1815 (3 Stat. L., 224); April 24, 1816 (ibid., 297); April 14, 1818 (ibid., 420); April 20, 1818 (ibid., 460); March 2, 1821 (ibid., 615), to reduce and fix the military peace establishment, made no provision for these officers which then ceased to exist. The office of post chaplain was established by section 18 of the act of July 5, 1838 (5 Stat. L., 259), appointments thereto being vested in the councils of administration of the several military posts. Chaplains were to act as post schoolmasters, and their compensation was to be fixed by the post councils, with the approval of the Secretary of War, but was in no case to exceed forty dollars per month, with four rations per day and an established allowance of fuel and quarters. The number of chaplain posts was fixed at twenty by the act of July 7, 1838 (ibid., 308), which were to be designated by the Secretary of War, and were to be "confined to places most destitute of instruction." By section 3 of the act of March 2, 1849 (9 ibid., 357), the number of chaplain posts was increased to thirty, and by section 2 of the act of February 21, 1857 (11 ibid., 163), the monthly pay proper of chaplains was increased to a sum not exceeding sixty dollars, subject to the approval of the post council of administration. For each of the regiments of volunteers authorized to be raised for the war with Mexico a chaplain was authorized, and power was conferred upon the President to order the existing post chaplains to the theater of active operations, and, in the event of their refusal to obey such order, their offices were to be declared vacant by the Adjutant-General of the Army; Section 7, act of February 11, 1847 (9 Stat. L., 124). During the war of the rebellion a chaplain was authorized for each regiment of volunteers, who was to have the pay and allowances of a captain of cavalry; section 9, act of July 22, 1861 (12 Stat. L., 270). By section 7 of the act of August 3, 1861 (ibid., 288), none but ministers of some Christian denomination were to be eligible for appointment. By section 2 of the act of May 30, 1862 (ibid., 404), the President was authorized to appoint a chaplain for each general hospital; by the act of July 17, 1862 (ibid., 594), their pay and allowances were fixed and the qualifications for the office were established. Rank, without command, was conferred by the act of April 9, 1862 (13 ibid., 46), in which enactment their duties were still further defined. By section 31 of the act of July 28, 1866 (14 ibid., 337), the existing force was recognized and continued, and one chaplain was authorized for each regiment of colored troops established, "whose duty shall include the instruction of the enlisted men in the common English branches of education;" by section 7 of the act of March 2, 1867 (ibid., 423), the rank of captain of infantry, without command, was conferred, and chaplains were placed upon the same footing in respect to pay, allowances, and emoluments as other officers of the Army. By section 12 of the act of February 2, 1901 (31 ibid., 750), the distinction between post and regimental chaplains was abolished and chaplains were thereafter required to be assigned to regiments of the line or to stations occupied by the troops of the corps of artillery. of cadets. 1267. When any cadet of the United States Military Acad- Appointment emy has gone through all its classes and received a regu- 24, p.50. lar diploma from the academic staff, he may be promoted and commissioned as a second lieutenant in any arm or corps of the Army in which there may be a vacancy and the duties of which he may have been judged competent to perform. Act of May 17, 1886 (24 Stat. L. 50). 1In the absence of statutory restrictions, the power of the President to make appointments or promotions in the line or staff of the Army is plenary, being conferred by Article II, section 11, paragraph 2 of the Constitution of the United States. Congress, however, has established certain uniform rules of promotion, and in several instances has prescribed the classes from which selections must be made in appointing to original or other vacancies. See, for examples of such regulation, section 3, act of June 18, 1878 (20 Stat. L., 145); act of May 17, 1886 (24 ibid., 50); Oct. 1, 1890 (26 ibid., 562); July 30, 1892 (27 ibid., 336); March 8, 1898 (30 ibid., 261); April 26, 1898 (ibid., 364); March 2, 1899 (ibid., 977), and February 2, 1901 (31 ibid., 748). The appointment of general officers is regulated by paragraph 21 of the Regulations of 1895, which contains the requirement that "appointment to the grade of general officer is made by selection from the Army." "The appointment of cadets and enlisted men to the grade of second lieutenant is regulated by the acts above set forth. Section 3 of the act of June 18, 1878 (20 Stat. L., 145), contained the requirement that all vacancies occurring in the grade of second lieutenant should be filled from the graduates of the Military Academy so long as any such remained in the service unassigned, and that vacancies then remaining should be filled by the promotion of meritorious noncommissioned officers, and that any vacancies remaining after the exhaustion of the two classes above named might be filled by the appointment of persons from civil life; but this provision was expressly repealed by section 5 of the act of July 30, 1892 (27 ibid., 336). The policy of the Executive in respect to appointments to the grade of second lieutenant in the line of the Army is now regulated by the following requirements of Army Regulations: Vacancies in the grade of second lieutenant existing on the 1st day of July each year are filled by appointment, in order, as follows: (1) From graduates of the United The same. Ibid. Appointment of enlisted men. 3, v. 27, p. 336. 1268. In case there shall not at the time be a vacancy in such arm or corps, he may, at the discretion of the President, be promoted and commissioned in it as an additional second lieutenant with the usual pay and allowances of a second lieutenant until a vacancy shall happen. Ibid. 1269. The vacancies in the grade of second lieutenant July 30, 1892, s. 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 seventy-eight, shall be filled by the appointment of competitors favorably recommended under this act in the order of merit established by the final examination. Section 3, act of July 30, 1892 (27 Stat. L., 336). Appointments to be to arm of service. Oct. 1, 1892, s. 2, . 26, p. 562. 1270. 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. Sec. 2, act of October 1, 1890 (26 Stat. L., 562). States Military Academy; (2) from enlisted men of the Army found duly qualified; (3) from civil life. Par. 26, A. R. 1901. A civilian to be eligible for appointment must be a citizen of the United States, unmarried, between 21 and 27 years of age, must be examined and approved as to habits, moral character, mental and physical ability, education, and general fitness for the service by a board convened and constituted as provided in paragraph 25 for the final competitive examination of soldiers. Par. 31, ibid. For regulations respecting the examination of candidates from civil life for appointment to the grade of second lieutenant in the line of the Army see General Orders No. 35, A. G. Õ., 1898, and G. O. 156, A. G. O., 1899. See footnote (2) to section 1267. 2 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., 149. 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 constitnte 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. L., 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. L., 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. L., 755), and the act of March 2, 1901 (ibid., p. 900), paragraph 578 ante. PROMOTIONS. seniority. Oct. 1, 1890, v. 26, p. 562. 1271. Hereafter promotions to every grade in the Army Promotion by 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. 2, act of October 1, 1890 (26 Stat. L., 562). 1272. Hereafter all vacancies occurring in the cavalry, artillery, and infantry above the grade of second lieuten- 2, ant 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 April 26, 1898 (30 Stat. L., 364). The same Apr. 26, 1898, 8. v. 30, p. 364. The act of October 1, 1890 (26 Stat. L., 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 application by section 2 of the act of April 26, 1898 (30 Stat. L., 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. R., 404. APPOINTMENT AND PROMOTION OF COMMISSIONED OFFICERS, Notices of appointments and promotions are issued by the War Department, through the Adjutant-General of the Army. Par. 20, A. K., 1901. Appointment to the grade of general officer is made by selection from the Army. Par. 21, ibid. 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. 23, ibid. 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 (paragraph 938, 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. L., 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. L., 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 66 Examinations for promotion of major. 1890, v. 26, p. 562. passed examina ing law. COMMISSIONS. 1273. 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 March 28, 1896 (29 Stat. L.,75). EXAMINATION OF OFFICERS FOR PROMOTION. 1274. That the President be, and he is hereby, authorized all officers below to prescribe a system of examination of all officers of the Sec. 3, Oct. 1, Army below the rank of major to determine their fitness for promotion, such an examination to be conducted at such times anterior to the accruing of the right to promoWhere officer tion as may be best for the interests of the service: Protion under exist- vided, That the President may waive the examination for promotion to any grade in the case of any officer who in pursuance of existing law has passed a satisfactory examiFailure to pass, nation for such grade prior to the passage of this act: And provided, That if any officer fails to pass a satisfactory examination and is reported unfit for promotion, the officer next below him in rank, having passed said examination, Retirement on shall receive the promotion: And provided, That should ity contracted in the officer fail in his physical examination, and be found etc. physical disabil line of duty. incapacitated for service by reason of physical disability contracted in line of duty he shall be retired with the rank 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. XVII Opin. Att. Gen., 65. See, also, paragraph 1318, post, and note 1, supra. A commission, whatever its form, is but evidence of the fact that the President 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. |