service in indicating the sequence of the cases tried and the course and order of the business transacted, a statement of such adjournment is not an essential part of the record of proceedings, and its omission will not affect their validity. XXIII, 627, August, 1867; XXXIII, 456, November, 1872. 394. Where the order convening a military court is in the more usual form, requiring it, generally, to try such cases as may be brought before it, an adjournment at some period of its sessions without a day fixed for its reassembling will not preclude its meeting again and continuing its sessions till its business is terminated. XXI, 91, December, 1865. 395. An adjournment "sine die" of a court martial is quite without legal significance, having no more legal effect than a simple adjournment. Such an adjournment does not dissolve the court, since a military court has no power to terminate its own existence or divest its authority. XXI, 679, November, 1866; XXVI, 588, June, 1868; XLII, 158, February, 1879. AID-DE-CAMP. 396. The aids of the General of the Army, though not holding the appointment or office of colonel of the army, are invested by law (sec. 1096, Rev. Sts.) with the rank of colonel upon their selection as aids and while acting as such. They are therefore entitled to sit upon courts-martial and boards according to this rank, as dating from their selection. XXX, 168, March, 1870. 397. Held (December, 1864) that the "additional aids-de-camp," authorized by the act of August 5, 1861, were a part of the regular army. They were appointed by the President and confirmed by the Senate, and the Act creating them provided that they should "bear the rank and authority of captains, majors, lieutenant colonels, or colonels of the regular army." Moreover, this act was expressly entitled as "supplementary" to the Act to increase the military establishment of the United States, of July 29 of the same year, which provided for an increase of the regular army by the addition of new regiments. And although the act of Aug. 5, 1861, provided for the appointment of these See Brown v. Root, Supreme Court, D. C., 1900 (44087, Law). 2A court-martial in session at a military post or station is authorized to adjourn to the quarters, at the same post or station, of a sick witness and there take his testimony, if he is in fact, as certified by the medical officer, too ill to come to the court room. See G. C. M. Ó. 37, Dept. of the East, 1870. 3 This ruling is adopted in the opinion of the Attorney General of August 11, 1880. Compare the opinion of the Court of Claims in Wood e. United States, 15 Ct. Cls., 151. *Similarly held by the Secretary of War in the case of an aid of the Lieut. General, of the rank of lieutenant colonel, detailed upon a court martial for the trial of a cadet in 1870. aids only during the rebellion, and for their discharge when not employed in active service, and their reduction in number at the discretion of the President, yet provisions of a similar character, applicable to regular officers, are contained in sec. 6 of the principal act of July 29. It is not essential to an office in the "regular" army that its term be without statutory limit. XI, 267, December, 1864. 398. It is substantially laid down as a general rule in Circ. No. 1 A. G. O., 1883, that aids-de-camp shall be entitled to be paid as such only from the day upon which they report in person for duty. It may however be too strict to insist upon such a rule in every case, since it is possible that duty may be duly devolved upon an aid-de-camp by his General prior to his arriving and reporting at the headquarters. But exceptions to the general rule should not be admitted except where clearly justified. 61, 237, August, 1893. 399. A civilian during the war of the rebellion, while with a general officer in the Army of the Potomac, often carried messages for him, voluntarily performing the duties usually performed by an aid-decamp. Subsequently, in 1890, he asked that he be placed on the muster rolls and discharged. Held, that never having been mustered his name ought not be on the rolls. That never having been in the status of a soldier there was nothing upon which to base a discharge from such status. Advised, that his request could not be granted. Further held, that he was not, within the meaning of the proviso of Civil Service rule X, "a person who served in the military service of the United States in the war of the rebellion and was honorably discharged therefrom." 37, 462, January, 1890. ALASKA. 400. By the treaty of cession with Russia, subjects of that nation inhabiting the Territory of Alaska at the date of the treaty and continuing to remain such inhabitants for three years, became thereupon American citizens. But the treaty neither mentions nor refers to British subjects or the subjects of any foreign nation other than Russia: such persons, therefore, residing in the Territory, can become citizens only in the mode and form prescribed by the U. S. naturalization laws. XXXVIII, 555, April, 1877. ALIEN. 401. Aliens, honorably discharged after enlisting in our army, are not, by such discharge alone, made citizens, but they are thereupon entitled (under a provision of the act of July 17, 1862, now Sec. 2166, Rev. Sts.) to be admitted to become citizens without previous declaration of intention, upon merely presenting to the proper court (see Sec. 2165, Rev. Sts.) a petition for the purpose, accompanied by proof of at least one year's residence within the United States previous to the application, of good moral character, and of the fact of honorable discharge. XXVII, 69, July, 1868; XXIX, 295, 369, September and October, 1869; XXXI, 255, March, 1871; 21, 108, December, 1887. 402. Held that Sec. 2166, Rev. Sts., did not apply to the case of an alien honorably discharged from an enlistment as a seaman in the navy; the term "armies of the United States," employed in the statute, being deemed to refer (as in the Constitution) only to the military force proper. XLI, 613, July, 1879. 2 403. Under the act of July 30, 1892, an enlisted man, to be eligible for promotion as commissioned officer, must be a citizen of the United States. And, in order to be promptly naturalized, under Sec. 2166, Rev. Sts., he must first be honorably discharged. So, advised that such alien, to be qualified for examination and appointment under the act, should be discharged and, after naturalization, be re-enlisted. 62, 186, October, 1893. 404. Held that there was no law precluding an alien residing in the United States, the subject of a foreign government with which we are at peace, from displaying the flag of his country on his dwelling. 15, 176, March, 1887. 405. The law does not prescribe that citizens or any other particular class of persons shall be the only competent bidders for government contracts or that aliens shall not be competent to bid. 49, 134, September, 1891. 406. On the question whether a clause be inserted in future government contracts which would prohibit the employment of aliens on government work, held, that there is no law which authorizes the insertion of such a provision in government contracts and that in the absence of such legislation the Secretary of War is without authority to require it. Card 2087, February, 1896. APPEAL. 407. Appeal, in the sense in which the term is employed in the procedure of the civil courts, is unknown to the military law. While there is such a thing as a new trial-a proceeding, however, of the rarest occurrence (see § 1796, post),—a party legally sentenced by a competent court-martial has no right of appeal to a higher or other But see now the act of August 1, 1894, regulating enlistments in the army. tribunal, but, in the great majority of cases, can obtain relief only by application to the pardoning power, or where the sentence has been executed-to Congress. I, 451, December, 1862. APPOINTMENT. 408. An appointment (or commission) in order to take effect at all, must be accepted; but, when accepted, it takes effect in respect to rank 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.' So held that certain assistant surgeons, whose appointments were noted in the Army Register as dating. from the dates of acceptance, were entitled to have such dates changed to those of the appointments as actually made; that, while the date of acceptance is important in fixing the time from which, according to par. 1448, Army Regulations, properly commences the right to pay, it is the date of the execution of the appointment itself (or the prior date, where it is made in terms to relate back) which properly fixes the relative rank of the officer. XXXIX, 609, July, 1878. 409. Where to certain appointments made on the same date a particular order was given, with the intention of having the appointees rank in that order, but, subsequently, in sending the names to the Senate for confirmation, this order was by mistake reversed; held, after a confirmation of the appointees as thus sent, that this mistake and action could properly have no effect to change the relative rank of these officers as given and fired by the original act of appointment. XLII, 254, April, 1879. 410. The Constitution (Art. II, Sec. 2, par. 2) provides that "Congress 1See RANK, secs. 2122 to 2131, inclusive, post. That an appointment is complete when made out and signed by the appointing power, and confers on the appointee the right to the office, see Marbury v. Madison, 1 Cranch, 137; U. S. v. Bradley, 10 Peters, 343; U. S. v. Le Baron, 19 How., 73; Montgomery v. U. S., 5 Ct. Cls., 93. The office, however, cannot be considered as filled until the appointee has, in fact, accepted it. (Mechem on Public Officers, § 247; Am. & Eng. Ency. of Law, 1st Ed., vol 19, p. 437.) In the absence of a statute requiring adjustment on a different basis, pay begins with the date of acceptance. (Dig. Second Comp. Dec., vol. 3, §§ 892, 908, 933. See, also, U. S. r. Flanders, 112 U. S., 88; U. S. v. Eaton, 169 id., 331; 16 Opins. Atty. Gen., 38; 4 Comp. Dec., 496; 6 id., 672.) The acceptance may be implied from the entry upon the discharge of the duties of the office (Am. & Eng. Ency, of Law, 1st Ed., vol. 19, p. 437), and such acceptance may, it seems, be of an anticipated appointment so that it will take effect and pay begin when the appointment is complete and prior to notice thereof. (5 Comp. Dec., 375.) În cases of promotions in the Army pay is allowed by "immemorial customs and practice" from dates of vacancies. This is the time fixed by the Army Regulations of 1863, which have been recognized and sanctioned by Congress.' Dig. Second Comp. Dec., vol. 3, §§ 867, 882; 7 Comp. Dec. (dated March 12, 1901). Par. 1306, A. R. of 1895 (1455 of 1901), provides: "A person appointed to the Army, or receiving an appointment to a new office therein, is entitled to pay from date of acceptance only. In all cases of promotion an officer is entitled to pay from date of vacancy." may by law vest the appointment of inferior officers in the President alone." So, where, in three several cases, Congress, by special legislation, authorized the President to "restore," or "reinstate," in his former rank and office, an officer (who had been-as expressed in the act, or indicated by the reports of committees, debates, &c.-in the opinion of Congress, erroneously or unjustly dismissed or mustered out), and to place him on the retired list in his previous grade, held, that such legislation empowered the President to reappoint the party without the concurrence of the Senate, and that the simple act of appointment by the President alone fully invested the party with the military office. XLII, 178, 193, 246, 353, February and July, 1879. 411. The act of June 18, 1878, c. 263, s. 4, made eligible for appointment, as second lieutenants, non-commissioned officers of the "commands" of the "chiefs of the staff corps" of the army. Held, under this provision, that a non-commissioned officer on detached service as a clerk in the office of the Adjutant General was eligible to such appointment. XXXIX, 629, August, 1878. In a case of a principal musician, who was also a lance sergeant, recommended for appointment as second lieutenant under s. 3 of the act of June 18, 1878, c. 263, held that neither a principal musician nor a lance sergeant was a non-commissioned officer, and therefore that the soldier was not eligible to appointment under that statute. XLIII, 373, July, 1880. 412. Held that a special authority given by an act of Congress to the President to appoint a certain civilian to “any vacancy occurring in the grade of captain" in a certain regiment, empowered the President to appoint the party to the next such vacancy, without regard to the claim thereto, of the senior first lieutenant. XXXIX, 525, May 1, 1878. 2 413. It was provided by the act of June 19, 1878, c. 263, s. 13, that no appointments or promotions should thereafter be made to fill any vacancy occurring in the army (except in certain inferior grades specified) until the report of a certain joint committee on the reform and reorganization of the army, constituted by the same act, and required to make report to Congress by January 1st, 1879, should "be made and acted upon by Congress." The report was made prior to the date fixed and was considered in various forms by both houses of Congress, but Congress finally adjourned, on March 4th, 1879, without specifically adopting or rejecting the report as such. Held that the Congress intended by the act was the Congress by which the act was passed, 'See this ruling confirmed by the Court of Claims in Collins e. United States, 14 Ct. Cls., 568. The Solicitor General, however, in an opinion of April 10, 1879 (16 Opins., 624), had previously held contra. See 14 Opins. At. Gen., 499. |