1819. Sec. 1222, Rev. Sts., does not apply to enlisted men. But except perhaps in a rare case-as, for example, the case of an ordnance sergeant, or other member of the non-commissioned staff, established. at a permanent station-it must in general be quite incompatible with the status and obligation of an enlisted man to hold any civil office or employment, even one held for the mere purpose of qualifying the party to administer oaths, as that of a notary public. XXXVIII, 616, June, 1877.

1820. There is no statute of the United States which renders a retired enlisted man of the army ineligible for civil office. So held, that in the absence of any State statute directly or indirectly disqualifying such person for holding or exercising the office of town constable, he may legally be elected or appointed to and exercise the same. 1077, March, 1895.

Card

1821. There is nothing in the United States statutes or army regulations which prohibits a quartermaster employee (post engineer) from accepting the office of member of a city council. Card 5023, September, 1898.

1822. Held that the position of master machinist at the Springfield Arsenal, conferred by the appointment of the commanding officer, was not properly a Federal office, but an employment simply, so that, upon the appointee being elected a member of the school committee and of the Board of Water Commissioners of Springfield, he could not be said to come within the application of the Executive order of Jan. 28, 1873, declaring that persons holding Federal office should, if accepting State, Territorial or municipal office, be deemed to vacate and resign the Federal office. XXXVI, 223, February, 1875.

1823. Officers on the retired list are not affected by the provisions of Sec. 1222, Rev. Sts. They may hold any State, county or municipal office, and receive the emoluments of the same without their military office or pay being in any manner affected. Nor will their holding military office under the United States operate as a disability to their receiving office or pay under the State, in the absence of any State statute creating such disability. XXXI, 136, January, 1871; XLI, 662, August, 1879; XLII, 165, February, 1879; Card 3327, June, 1897. 1824. Held that the prohibition of Sec. 1860, Rev. Sts., that “no person belonging to the army or navy shall be elected to or hold any civil office or appointment in any Territory," included officers on the retired as well as on the active list of the army. XLII, 111, January, 1879.

To a similar effect, see 15 Opins. At. Gen., 306.

2

2 But see, now, the act of March 3, 1883, excepting retired officers from the application of the original provision.

1825. By a provision of the act of March 30, 1868, c. 38, s. 2 (now incorporated in Sec. 1223, Rev. Sts.), it was declared-"that any officer of the army or navy who shall, after the passage of this act, accept or hold any appointment in the diplomatic or consular service of the Government, shall be considered as having resigned his said office, and the place held by him in the military or naval service shall be deemed and taken to be vacant." Held, in the case of an officer of the army who at the date of this statute was holding a diplomatic position, that his military office must be regarded as vacated unless he forthwith resigned his diplomatic office on being advised of the passage of the act; that he could not legally be allowed to continue to hold his military office for a certain time till his services in the diplomatic office could conveniently be dispensed with. XXVI, 655, July, 1868.

1826. II, that the act of March 30, 1868, c. 38, s. 2 (now Sec. 1223, Rev. Sts.), applied to officers on the retired list equally and alike with officers on the active list of the army, and that an officer on the retired list who, subsequently to the passage of said act, accepted an appointment in the diplomatic service, became co instanti separated from the army, his military office ceasing thereupon to exist. XXIX, 1, June, 1869.

1827. Held that an engineer officer of the army could not act as a member of the "River Commission for Mobile River and Branches" without vacating his military commission under Sec. 1222, Rev. Sts.; such river commission being established as a "public body politic" by an act of the Alabama legislature of 1887, and a membership of the same being clearly a civil office. LV, 501, April, 1888.

1828. By "civil office," as the term is used in Sec. 1222, Rev. Sts., is undoubtedly meant civil public office. The presidency of the American Society of Civil Engineers does not involve the exercise of any public functions; so held that it was not a "civil office" and could be accepted by an officer of engineers of the army without his military commission being affected. 62, 420, November, 1893.

1829. A resolution of the Board of Supervisors of the City and County of San Francisco empowered an engineer officer of the army, with others, to devise and provide a system of sewerage for that city

See opinion of the Attorney General in 15 Opins. 306. In a later opinion (15 Opins. 407), the words "every such officer" in the proviso of s. 2 of the act of March 3, 1875, c. 178, were construed by the same authority as expressing the intent of Congress to so limit the application of the provision of March 30, 1868 (Sec. 1223, Rev. Sts.), that it should not affect the status of any officers borne on the retired list at the date of the first named act, March 3d, 1875, who were included within the preceding part of the proviso; but otherwise as to other retired officers. See also Badeau v. U. S., 130 U. S. 439.

That a resignation of a second office, the acceptance of which has operated to vacate an office previously held, will not work a re-investiture of the original office, see In re Corliss, 11 R. I. 643.

and county. Held that such officer, in accepting, would not be appointed to a civil office in the sense of Sec. 1222, Rev. Sts., but would be simply employed (with the approval of the Secretary of War) to perform a certain temporary service. The case distinguished from that of Col. Gillmore, Corps of Engineers. 54, 64, June, 1892.

1830. Held that an officer of the army could, without ceasing to be such officer under Sec. 1222, Rev. Sts., be assigned to and perform the duties of Adjutant General of the District of Columbia Militia, the same not being (at the time) a "civil office" created by law.* LII, 271, June, 1887.

1831. Ield, in view of the provisions of Sec. 1224, Rev. Sts., that an officer of the army could not legally be detailed in the service of "The World's Exposition of 1892," which is a corporation, nor upon "civil works" under the "World's Columbian Commission," which is not a corporation. And adrised that, irrespective of the statute, to assign an officer of the army to a duty which must, entirely or in great measure, and for any considerable period, separate him from the military duty for which Congress has authorized his employment and his pay, would, in the absence of statutory sanction, be unauthorized. 49, 211, September, 1891. Also further held, in view of Sec. 1224, Rev. Sts., that an officer of the army could not legally be detailed to inspect the buildings in the course of construction for the World's Columbian Exposition, since such inspection would be an employment "on civil works," and would require his separation from his corps and interfere with the performance of his military duties. 49, 245, September, 1891.

1832. The convention between the United States of America and the United States of Mexico dated March 1, 1889, provided for an "International Boundary Commission" to be composed of (1) a commissioner appointed by the President of the United States of America, and of another to be appointed by the President of Mexico, in accordance with the constitutional provisions of each country; (2) of a consulting engineer appointed in the same manner by each government; and (3) of such secretaries and interpreters as each government may see fit to add to its commission. On the question whether the acceptance by an officer of the army (captain of engineers) of an assignment or detail as "associate member," the same to be made by the Secretary of War,

'Col. Gillmore's case referred to is reported in 18 Opins. At. Gen. 11. And see Gen. Meade's case in 13 id. 310; also case in 16 id. 499. Compare the still more recent opinion of the Atty. Gen, in 20 Opins. 604.

2See now act March 1, 1889 (25 Stats., 772), authorizing such assignment.

3 Compare case in 19 Opins. At. Gen. 600. Congress, subsequently, by act of August 5, 1892, expressly authorized the Secretary of War to detail at his discretion officers of the army "for special duty in connection with the World's Columbian Exposition."

would vacate the officer's commission, held, that the boundary commission in question could have no members other than the three classes above mentioned; that such members are officers thereof and hold civil offices; and that while the Secretary of War was without power to make, by assignment or detail, a person a member of the commission, the exercise by an army officer, under such assignment or detail of the functions of the office of a member would under the provisions of Sec. 1222, Rev. Sts., vacate the officer's commission in the army. But remarked that if the officer were merely detailed to consult with and advise the consulting engineer of the commission and not authorized or required to perform any official act purporting to be an act of a member, he would not, by acting pursuant to such a detail, vacate his commission in the army. Card 2236, April, 1896.

1833. If the position of assistant to the postmaster at Mescalero, New Mexico, is an office, an officer of the army on the active list would under Sec. 1222, Rev. Sts., by accepting it, vacate his commission in the army. If it is not an office, the same result would follow his holding said position and exercising the functions of postmaster. Card 1854, November, 1895.

1834. The position of colonel of a division of the Rhode Island Division, Sons of Veterans, United States of America," is not a civil public office within the meaning of Sec. 1222. Rev. Sts. Card 2887, February, 1897.

1835. While the act of July 13, 1892 (27 Stats. 120), authorizes the detail of army officers as Indian agents, there is no statute specially authorizing an army officer to hold the office of assistant to the Deputy Commissioner of Indian Affairs. If such position is a "civil office" within the meaning of Sec. 1222, Rev. Sts., an army officer on the active list could not accept it or exercise the functions thereof without vacating his commission in the army. Card 2789, December, 1896.

1836. The assignment of officers of the army as collectors of customs in Cuba and Porto Rico, being in foreign territory under military occupation, held assignments to military duty and not to civil offices within the meaning of Sec. 1222, Rev. Sts. Card 5771, February, 1899.

1837. Whether a person who holds a State or county office can accept and hold an office as commissioned officer in the volunteer army of the United States without vacating his civil office is a question to be determined by the laws of the State.' Cards 4079, 4493, April and June, 1898.

1Under date of June 10, 1898, the Attorney General held (22 Opins. 88) that the provisions of Section 1222, Revised Statutes, do not apply to an officer of the United States volunteers for the reason that he is not an "officer of the army on the active list" within the meaning of that statute.

OFFICER.

1838. On account of the want of familiarity with the procedure of military courts on the part of militia officers of Louisiana, it was asked by the adjutant general of that State whether it would be admissible to detail upon such courts officers of the army who might be serving in the State, in connection with militia officers. Held that, apart from the provision of Sec. 1658, Rev. Sts., that such courts should be composed of militia officers only (see MILITIA), the Secretary of War would not be authorized to order officers of the army upon a duty so clearly outside of the functions devolved upon them by existing law, in the absence of express authority received from Congress. 60, 168, June, 1893.

1839. Where an officer of the army, having become accountable under Sec. 1304, Rev. Sts., for a deficiency or damage to military supplies, had deceased, held, in the absence of the exculpatory evidence indicated in the section, that the amount of such deficiency, &c., was chargeable against the pay due his estate. 16, 236, April, 1887.

1840. The object of the act of Feb. 3, 1887, c. 92, was to remunerate men for services rendered as officers prior to their being actually mustered in as such. It was not intended, however, to be used to make a person an officer who was not such. It did not provide for a re-muster, but declared that persons commissioned as officers should be considered, for purposes of pay, as having been mustered from the date when they commenced their services. 38, 30, January, 1890. A person was appointed an assistant surgeon of a volunteer regiment, and performed his duties as such from December, 1862, to February, 1863, without being mustered in. Held that he was a de facto officer, and entitled, under the act of Feb. 3, 1887, to pay for the said interval. 44, 244, December, 1890.

1841. G. O. 92 of 1862, War Department, provided that "all officers and privates fit for duty absent at that time (from the special muster of August 18, 1862) will be regarded as absent without cause, their pay will be stopped and they dismissed from the service or treated as deserters, unless restored; and no officer shall be restored to his rank unless by the judgment of a court of inquiry to be approved by the President, he shall establish that his absence was with good cause." The order also provided that disability from wounds received in the service should be a sufficient excuse for absence from the special muster of August 18, 1862. Under this order a first lieutenant, First Battery, Minnesota Light Artillery, being absent from the special muster of August 18, 1862, was dropped as a deserter. Subsequently a court of inquiry found that he was absent in consequence of wounds received in