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. ., 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 'See 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 . Madison, 1 Cranch, 137; U. S. r. Bradley, 10 Peters, 343; U. S. . 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. . Flanders, 112 U. S., 88; U. S. r. Eaton, 169 ad., 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.) In 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.1 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. 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 . United States, 14 Ct. Cls., 568. The Solicitor General, however, in an opinion of April 10, 1879 (16 Opins., 624), had previously held contra. 2 See 14 Opins. At. Gen., 499. viz., the Forty Fifth Congress; that as this Congress ceased to exist on the said March 4th, after which no action by it upon the report was possible, it might properly be said to have "acted upon" the same within the general terms of the act; and that accordingly, from and after the said date, the prohibition against the making of military appointments might be considered at an end. But held that the President, in thereafter appointing to vacancies which had in fact occurred during the period of prohibition fixed by this act, could not legally date back the appointments to take effect as of the dates of the vacancies, but that such appointments could take effect only on or after the said March 4th.' XLII, 197, March, 1879; XLIII, 85, November, 1879. 414. ld that the provision of sec. 6 of the act of March 3, 1869, prohibiting appointments and promotions in the medical and other staff corps did not apply to or prevent the advancement in rank of assistant surgeons from lieutenant to captain; the increased rank of these officers resulting by operation of law, after three years' service, under the Act of July 28, 1866 (Sec. 1168, Rev. Sts.), and no new appointment being required for the purpose. XXXI, 220, 223. March, 1871. 415. ld that a civilian (in this case a late captain who had been made a civilian by the approval and execution of a sentence dismissing him from the army) could, under existing law, be appointed to the line of the army only in the grade of second lieutenant, in the absence of express authority from Congress. For his appointment to his former grade, so as to except his case from the operation of the rule of promotion by seniority, the authority of Congress would be necessary. XXXVII, 363, March, 1876; XXXVIII, 159, July, 1876; XLIII, 130, January, 1880. 3 416. I that an appointment of a person as an officer of the army with the view and purpose of at once placing him on the retired list, would not be within the appointing power of the Executive, independently of authority from Congress; appointments to military office by the President being in contemplation of law appointments for the active duties and service of the military life, which can properly be performed only by men physically and mentally qualified therefor. Congress, however, of course may, as it has done in several cases, by a special enactment authorize the President to appoint an officer and thereupon place him on the retired list. XLIII, 130, January, 1880. The appointments were made according to this view, and were confirmed, after considerable debate, at the first session of the Forty-sixth Congress. See, to a similar effect, 16 Opins. At. Gen., 651. *See 14 Opins. At. Gen., 2, 164, 499. *See acts of June 21, 1876, c. 143; June 19, 1878, c. 330; Mch. 3, 1879, c. 175; Mch. 3, 1879, c. 201. 417. There can be no question as to the power of Congress to authorize the appointment of an officer with both rank and pay from a back date.' So the President (except where expressly prohibited by statute) may, with the concurrence of the Senate, appoint an officer with rank from an earlier date, though not, except by express authority of Congress, with back pay. But where an appointment to a specific military office has been duly made and accepted and has taken effect, held that the appointing power, as to that office, is exhausted. The Executive may indeed correct an error (of fact) in the date of such appointment, but no such error existing-he can not re-make the same as of a different and earlier date, either by his own action or by means of a re-nomination to the Senate, for the purpose of redressing an injury or grievance claimed by the officer to have resulted from the date originally given to the appointment. For such would be a granting of relief, and relief of a sort which can be accorded only by Congress. XLIII, 208, February, 1880. 418. The authority to "appoint" regimental staff officers, conferred upon regimental commanders by the Army Regulations, is no part of the constitutional appointing power, but is merely an authority to select and detail. As such it may be regulated by orders from the War Department, where desirable to prevent its being so exercised as to prejudice the interests of the service. Thus it is competent for the Secretary of War to direct by general order that such appointments shall not be dated back so as to take effect as of dates prior to those on which they were actually made, as also that appointees shall not become entitled to the additional pay for a period prior to their entering upon their duties. XLI, 609, July, 1879. 419. The function of regimental quartermaster is not an office but merely a duty attached to the office of a first lieutenant appointed to exercise it. The authority given to the commander of a regiment, by the Army Regulations, to "nominate the regimental quartermaster to the Secretary of War for appointment if approved," isɑsimply an authority to recommend a first lieutenant for the position, and the Secretary, in making the appointment, does not exert any of the appointing power of the Constitution, but only a power of selection and detail. Under Art. II, Sec. 2. par. 2, of the Constitution, a head of an executive department cannot appoint to office without being empowered to do so by Congress. Thus, the appointment of a regi 15 Opins. At. Gen., 101; 6 id., 68, 74; 7 id., 709, 712. 24 Opins. At. Gen., 318, 603, 608; 5 id., 132; 8 id., 223; United States e. Vinton, 2 Sumner, 299. 3See 3 Opins. At. Gen., 307. See the subsequent G. O. 73, Hdqrs, of Army, 1879, in accordance with this opinion. mental quartermaster being a mere detail, the Secretary of War is authorized at any time to withdraw or discontinue the appointment and service of a particular officer as regimental quartermaster, and to call upon the regimental commander to nominate another first lieutenant therefor. XLII, 567, April, 1880. 420. A regimental commander is not obliged by army regulations, to appoint to be sergeants or corporals of companies, the soldiers recommended to him for such appointments by the company commanders. He is to be regarded as vested with a discretion in the matter, and though in the great majority of instances he will properly appoint as recommended, he may, and should, decline to appoint where he believes the nominee to be an unfit person. XXVII, 159, September, 1868. 421. An enlisted man, beside being unmarried and not over 30 years of age, must have served honorably not less than two years, and be a citizen, to qualify him for examination and appointment as a commissioned officer. (Act July 30, 1892.) 57, 155, December, 1892. Under Sec. 2166, Rev. Sts., an alien (of 21 years of age) who has been honorably discharged as a soldier, may be naturalized without previous declaration of intention and after but one year's residence. But as the existing law contemplates that one applying for such examination shall be a soldier, such an alien, on being thus naturalized, would have to be reenlisted. Card 3366, July, 1897. The Belgian minister having applied for the discharge from our military service of a Belgian gentleman who had enlisted with a view to promotion and who desired to become naturalized accordingly-adrised that considerations of international courtesy would justify the Government in consenting to his discharge and reenlistment (after naturalization) in order to enable him to qualify himself for examination under the act of 1892. 186, October, 1893. 62, 422. The act of July 30, 1892, relating to the promotion of enlisted men to the grade of second lieutenant, provides that all soldiers under thirty years of age, having certain qualifications named, may compete for promotion under the system of examination to be prescribed by the President to determine their fitness for promotion. The act further provides for an order of merit of those successfully passing the final examination, and that they shall then be appointed in that order to the grade of second lieutenant, but that this right to appointment may be taken away by sentence of a general court-martial. On the question whether the President had the power in prescribing the sysstem of examination to provide by regulation that a competitor who has obtained a place in the order of merit, shall have and retain for one year only his right to appointment when reached in that order, held, |