were imperilled, were induced, solely in order to find means of escape from such desperate situation, to enlist in the enemy's army, advised that such soldiers, on subsequently surrendering to or being captured by our forces, should not as a general rule be treated as deserters but should be returned to duty with their regiments without punishment. XIV, 135, February, 1865; XVI, 40, 271, April and June, 1865. But where it appeared that certain soldiers of our army who when prisoners of war had enlisted in the enemy's service, had not attempted to escape when they might have done so, but had voluntarily remained and fought in the ranks of the enemy's army till forcibly captured by our forces, advised that their representations to the effect that they had joined the enemy to escape cruel treatment as prisoners of war, should not be allowed to weigh in their favor, but that they should be brought to trial for the crime of desertion to the enemy. XVI, 136, May, 1865.

PROFESSOR OF THE MILITARY ACADEMY.

2066. Sec. 1336, Rev. Sts., provides that "each of the professors of the Military Academy whose service at the academy exceeds ten years shall have the pay and allowances of colonel." Sec. 4 of the Army Appropriation Act of June 23, 1879, amends this section by inserting, after the word "service," the words "as professor." Ild that professors who, at the passage of the last statute, were being paid as colonels because of having served at the academy ten years, but who had not yet served there as professors for that period, could not legally continue to be so paid, but were entitled to be paid as lieutenant colonels only until they had completed the term of special service contemplated by the act of 1879. XLII, 375, August, 1879.

2. The professors of the Military Academy do not belong to the staff of the army within the meaning of Sec. 1205, Rev. Sts., since they have no military rank or grade. 56, 151, October, 1892.

PROMOTION.

2067. Par. 19, Army Regulations (1863), prescribed that promotions in established regiments and corps to the grade of colonel should be made according to seniority, except in case of disability. Thus a senior first lieutenant, upon a vacancy occurring in the grade of captain in his regiment, is entitled (if not disabled or incompetent) to be promoted thereto. But where, in case of such a vacancy, a civilian (a dismissed officer) was nominated (illegally, i. e., without authority of

Congress) to the captaincy in the stead of the senior first lieutenant, but was thereupon confirmed by the Senate and commissioned, held that the lieutenant was without remedy except such as he might obtain by application to Congress. XXIX, 47, June, 1869.

2068. Par. 20 of the Army Regulations (1863) prescribed that promotions to the grade of captain should be made regimentally. Section 1204, Rev. Sts., provides that "promotions in the line shall be made through the whole army, in its several lines of artillery, cavalry, and infantry, respectively." Held that this statute simply means that promotions shall be made within the branches of the service of the respective officers, . e., that infantry officers-for example-shall be promoted in the infantry arm, and not out of that arm and into another arm; and that it does not modify the rule laid down in the regulation but is declaratory of the same. Sec. 1204 is indeed not new law, but originates in a similar provision of s. 5, e. 108, act of June 26, 1812, viz.: From and after the passage of this act, the promotions shall be made through the lines of artillerists, light artillery, dragoons, riflemen and infantry, respectively, according to extablished rule." The established rule was that contained in a regulation of May, 1801, which prescribed, among other things, that-Promotions to the rank of captain shall be made regimentally "-precisely the language retained in the existing regulation. Of this regulation, therefore, Sec. 1204 is declaratory in the same manner as the act of 1812 was declaratory of the original regulation of 1801. XXXVII, 425, March, 1876. (See § 2072, post.)

2069. The act of June 18, 1878, sec. 13, in prohibiting for a time promotions and appointments in the army, added the proviso, “that this limitation shall not apply to the line of the army below the rank of captain." Held that the effect of this provision was to except subalterns from the general rule established by the statute, and that the promotion of a first lieutenant to a captaincy during the pendency of the prohibition was therefore legal. XLI, 400, September, 1878.

2070. An officer who is senior in his grade in his regiment is ineligible, while under a legal sentence of suspension from rank, to promotion to a vacancy occurring in a higher grade pending the term of his suspension. Upon such vacancy, the next senior officer becomes entitled to the promotion in his stead. XXXIII, 69, June, 1872.

2071. There is no vested right in promotion as such on the part of officers of the army. All that can be said is that officers have certain rights of promotion under whatever may be the law from time to time. These rights vary with the law. Congress may change the date of an

1 See 14 Opins. At. Gen. 164.

officer's commission so as to give him a right of promotion over other officers who ranked him before, and so postpone their right to his. Thus, where an act of Congress authorized the President to issue a new commission to a lieutenant, the effect of which would be to give him a precedence over twenty four other officers, held that such legislation was within the power of Congress, which was the sole judge as to its expediency. And held that the giving of authority in such case, being one in which individual rights were concerned, was to be construed as a requirement upon the President.' 58, 309, March, 1893.

2072. The act of October 1, 1890, c. 1241, substitutes "lineal" for "regimental" promotion, except only as to officers who were first lieutenants at the date of the act. A second lieutenant becoming a first lieutenant after that date is entitled only to lineal promotion. He must give way to all those who are senior to him in the grade of first lieutenant in his arm of the service. When promoted, he is simply promoted to captain-of infantry, &c., not to captain of any particular regiment; and is then assigned to a regiment in the discretion of the Secretary of War. There is no question of transfer involved; an officer need not be transferred from one regiment to another, for promotion into the latter. 61, 387, September, 1893.

2073. By express provision of the act of July 30, 1892, c. 328, only such enlisted men of the army as are "citizens of the United States" may "compete for promotion" to the grade of second lieutenant. So held that a soldier who was not a citizen was not eligible for examination for promotion under the act, and could not become so eligible until he had been naturalized according to the existing law. 57, 155, December, 1892.

2074. The act of Congress approved July 30, 1892, relating to the promotion of enlisted men to the grade of second lieutenant prescribes, among other things, that before they can compete for promotion they "must have served honorably not less than two years in the army." Held that, in computing this period of service, an absence on furlough could not under the terms of the statute legally be excluded; and that therefore the Army Regulation (par. 30 of 1895) in so far as it provides for such deduction should be viewed as in conflict with the statute and inoperative. Cards 1572, July, 1895; 1939, December, 1895.

2075. It is provided in Sec. 1257, Rev. Sts., that "when any officer in the line of promotion is retired from active service, the next officer in rank shall be promoted to his place, according to the established

1Supervisors v. U. S., 4 Wallace, 435.

* See this view adopted in decision circular 2, A. G. O., 1896. 16906-01-37

* * *

rules of the service." One of these rules is that contained in par. 21, A. R. (1889), to the effect that "promotions will be made according to seniority, except in case of disability." An officer had himself applied to be retired on account of a certain disability, and had been ordered before a retiring board which had found him incapacitated. But before the President acted upon the report of the board a vacancy occurred in the grade next higher to that of the officer, to which, if qualified, he would have been entitled to be promoted by seniority. Held that, as the fact of disability clearly appeared in the case, though no final action had been taken in regard to the retirement, the officer could not legally be promoted. 43, 83, September, 1890.

2076. Held that a vacancy in the office of "chief medical purveyor" "1 should be filled, not by transfer from another office in the medical corps of equal rank, but by the promotion of the senior lieutenant colonel of the corps. 42, 331, August, 1890.

2077. A vacancy in the grade of quartermaster with rank of major having occurred in the Quartermaster Department, a military storekeeper in that department, who was the senior captain in the same, applied for the promotion. Held that the office of military storekeeper was no part of the permanent organization of that department, as constituted by the act of March 2, 1875, and was not one of the series of offices of the department to which the right of promotion under the law and regulations attached upon a vacancy, and that the claim must therefore be disallowed. Rank or grade is but an incident to office. Promotion is from office to office and as a consequence from grade to grade, and the law does not permit, in promotion, a separation of the office from the grade or rank. LVI, 683, October, 1888.

PROSECUTOR.

2078. Other than the judge-advocate, who by the 90th Article of War is "required to prosecute in the name of the United States," our military law and practice recognize no official prosecutor. The party who is in fact the accuser or the prosecuting witness, is, in important cases, not unfrequently permitted by the court to remain in the court room and advise with the judge-advocate during the trial, if the latter requests it; and in some cases he has been allowed to be accompanied by his own counsel. If such a party is to testify, he should ordinarily be the first wintess examined: this course, however, is not invariable. II, 1, June, 1863; XXIX, 34, June, 1869.

1This office has been done away with by the operation of the act of July 27, 1892, c. 270.

PROTEST.

2079. Where the majority of the members of a court martial have come to a decision upon any question raised in the course of the proceedings, or upon the finding or sentence, no individual of the minority, whether the president or other member, is entitled to have a protest made by himself against such decision entered upon the record. The conclusions of the court (except in cases of death sentences, where a concurrence of two-thirds is required) are to be determined invariably by the vote of the majority of its members, and it is much less important that individual members should have an opportunity of publishing their personal convictions, than that the action of the court should appear upon the formal record as that of the aggregate body, and should carry weight and have effect as such.1 XI, 203, December, 1864; XXV, 542, May, 1868. Nor can a protest (against the finding or otherwise) by a minority of the members, be appended to the record, on a separate paper. XXXVI, 264; February, 1875.

PUBLIC MONEY.

66

2080. Held that the amounts received from private parties as compensation" for the use of the Des Moines Dry Dock, under the act of August 2, 1882, c. 375, were public money, and, in the absence of any authority for the purpose in this act or other statute, could not legally be expended without an appropriation by Congress. By Secs. 3617 and 3621, Rev. Sts., it is made the duty of every person, official or otherwise, to pay into the Treasury, "at as early a date as practicable," any public money coming into his possession. The deposit and keeping of public money, by disbursing officers, in places where there is no public depositary, is regulated by the Secretary of the Treasury, under Sec. 3620, Rev. Sts. 39, 395, March, 1890.

2081. Where an officer in charge of certain river and harbor improvements exacted and received, from certain contractors for the work, sundry small sums of money claimed as due from them as amercements for damage or loss caused by them to the United States, held that such sums were public money of the United States, and that a failure to account for the same as such rendered the officer liable to a charge of embezzlement. 52, 138, February, 1892.

2082. Held that money received as rent or compensation for the use of portions of the water front of the Fort Canby reservation, Washington, for fish-traps, was public money and was to be accounted for

1See Simmons, § 469; Hough (Precedents), 703, note 4.