Navy Department-Vacancies. rights and obligations is indicated by that clause of section 3 which directs the "examination to be conducted anterior to the accruing of the right to promotion." Following this provision the first rule of the "system of examination" prescribed by the President pursuant to section 3 directs that: "At such time anterior to the accruing of the right to promotion, as may be best for the interests of the service, officers below the rank of major shall be examined by a board," etc. (General Orders, No. 128.) This general purpose is not affected by the occasional procedure which obtains in analogy to section 1562, Revised Statutes, in cases of necessity. The executive construction under the act of October 1, 1890, in analogous cases is of much weight in reaching a proper conclusion. When that act went into effect several officers of different grades below the rank of major were entitled to promotion to then existing vacancies, and the promotions to fill these vacancies were in every instance filled under the law as it existed prior to October 1 without the examination prescribed by that act. This was a practical executive construction that can not be reversed without assuming the risk of occasioning confusion and violating those rules which require stability and consistency in construction. In Schell's executors v. Fauche (138 U. S., 572) the court says: In all cases of ambiguity, the contemporaneous construction, not only of the courts but of the Departments, and even of the officials whose duty it is to carry the law into effect, is universally held to be controlling." Although it may be fairly claimed that the practice under the act of 1890 has not had sufficient time to ripen into the principle quoted, it should clearly appear that the executive action stated was contrary to law to justify the overruling of this departmental decision. It is quite important to note that it must be understood that the legislation of 1892 was made by Congress with a full knowledge of the executive construction which had been previously made upon the act of 1890, and the inference is a necessary one that if this construction had not been in Member of the National Guard-Government Clerk Absent on Parade. accord with the intent of Congress the act of 1892 would have contained a provision requiring a different executive ruling. Permit me to say, in conclusion, that a construction which requires the three officers specified by you to be examined under the provisions of the act of July 28, 1892, will disregard rights which ought to be treated as vested rights of the officers affected, and will run counter to the established determination of the War Department, and will reverse a decision which has been practically acquiesced in by Congress. It is my opinion that the promotions under consideration may lawfully be made without the examination in question. Very respectfully, CHARLES H. ALDRICH, Acting Attorney-General. The SECRETARY OF THE NAVY. MEMBER OF THE NATIONAL GUARD-GOVERNMENT CLERK ABSENT ON PARADE. An employé of a Department absent from his duty while at Omaha, Nebr., at a prize drill duly ordered by a superior officer of the National Guard, of which he was a member, is entitled to his pay while absent. DEPARTMENT OF JUSTICE, August 11, 1892. SIR: Your letter of August 2 requests my opinion whether John J. Gavin, jr., an employé of the Treasury Department and a member of the "Fencibles," a company of the National Guard of the District of Columbia, is entitled to pay as such employé while absent at Omaha, Nebr., with the company for the purpose of competing in a prize drill, the period of such absence exceeding the usual thirty days allowed employés of the Departments, under the act of March 3, 1883 (22 Stat., 563); which provides that: "All absence from the Departments on the part of said clerks or other employés in excess of such leave of absence as may be granted by the heads thereof, which shall not exceed thirty days in any one year, except in case of sickness, shall be without pay." Member of the National Guard-Government Clerk Absent on Parade. This is to be read in connection with the act of March 1, 1889, entitled "An act to provide for the organization of the militia of the District of Columbia" (25 Stat., 772). Section 49 of that act is as follows: "That all officers and employés of the United States and of the District of Columbia, who are members of the National Guard, shall be entitled to leave of absence from their respective duties, without loss of pay or time, on all days of any parade or encampment ordered or authorized under the provisions of this act." The word "parade" as used in this section is not limited to its popular meaning of a pompous exhibition for purposes of display. As a military term it is defined as "an assembly and orderly arrangement of troops, in full equipments, for inspection or evolutions before some superior officer; a review of troops." (Webster's International Dictionary; subject: "Parade.") The next inquiry is, What days of parade or encampment are ordered or authorized by this act? Section 43 provides: "That the National Guard shall perform not less than six consecutive days of camp duty in each year, at such time as may be ordered by the commanding general." This is the only section prescribing any fixed time. It plainly appears, however, that it was not contemplated that this annual encampment should be the only service required, as power is given to the commanding general, by section 41, to "prescribe such stated drills and parades as he may deem necessary for the instruction of the National Guard, and may order out any portion of the National Guard for such drills, inspections, parades, escort, or other duties as he may deem proper. The commanding officer of any regiment, battalion, or company may also assemble his command, or any part thereof, in the evening for drill, instruction, or other business, as he may deem expedient; but no parade shall be performed by any regiment, battalion, company, or part thereof, without the permission of the commanding general." Section 42 provides: "That an annual inspection and muster of each organization of the National Guard, and an inspection of their armories and of public property in their Member of the National Guard-Government Clerk Absent on Parade. possession, shall be made at such times and places as the commanding general may order and direct." Section 40 provides: "That any drill, parade, encamp. ment, or duty that is required, ordered, or authorized to be performed under the provisions of this act, shall be deemed to be a military duty, and while on such duty every officer and enlisted man of the National Guard shall be subject to the lawful orders of his superior officers, and for any military offense may be put and kept under arrest or under guard for a time not extending beyond the term of service for which he is then ordered." Section 46 provides: "For absence from any other military duty required or ordered under the provisions of this act the penalty shall be such as may be prescribed by the commanding general, or the by-laws of the organization to which the officer or soldier belongs." Mr. Gavin was thus subject to the orders of his commanding general and superior officers, and to military discipline if he failed to yield the strictest obedience. Inquiry of the commanding general shows that this company went to Omaha pursuant to regularly published orders by that officer. It has been suggested that the commanding general had no right to order the company into any encampment, or upon any service beyond the confines of the District of Columbia; that Mr. Gavin could have refused to go beyond the limits of the District, and, in the absence of such refusal, must be held to have voluntarily gone to Omaha. In the first place, the act does not limit the parades and encampments to the District of Columbia. In the second place, it would be subversive of all discipline, and can not be seriously contended, that a private is required to refuse to obey the orders of his superior officers in order to escape the loss of a few days' pay, and thus subject himself to military trial, and the risk and expense incident thereto. A soldier is not the judge in such cases. His first duty is obedience. The answer to this suggestion, and to the suggestion contained in the inclosure accompanying your communication, that the civil service might be greatly impeded by long-continued absences by order of the commanding officers, is found. Attorney-General. in the presumption against official misuse of power. This danger may well be considered remote where, as in this case, the commanding officer is subject to the orders and directions of the President as commander in chief (section 6), who would doubtless remedy any abuses of the kind suggested. My conclusion, therefore, is that Mr. Gavin is entitled to his pay while absent under the circumstances herein stated. Respectfully, yours, CHARLES H. ALDRICH, The SECRETARY OF THE TREASURY. ATTORNEY-GENERAL. Where the Attorney-General is not called upon to give an opinion upon any question pending undetermined, but is asked to review and express his conclusions upon the correctness of interpretations and applications of law heretofore made, he is not permitted to give an opinion, nor will he give an opinion upon a hypothetical case as to questions which may arise in the future. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge the receipt of a letter from your Department, signed by the Acting Secretary of the Treasury, and bearing date the 6th instant, calling my attention to an act entitled "An act relating to the limita- . tion of the hours of daily service of laborers and mechanics," etc., approved August 1, 1892. I trust that I may be permitted to employ a paragraph of the opinion of Attorney-General Speed (11 Opin., 188), in saying that "it would give me great pleasure to comply with the request contained in [the] letter if I could clearly see that it is proper for me to do so, in view of the law which prescribes the duties and limits the powers of this office." After a preliminary paragraph, the letter states as follows: "In giving practical consideration and application to said law (so far as necessity has arisen for the consideration and application of the same) to cases pertaining to work being or to be done by the day or under contract at the various public buildings under the control of the Treasury Department |