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pointments in the departments at Washington generally, with the exception of the temporary census force, and one for such force--it seems to me that there is no more reason for requiring a person in the temporary census force to return to his State for the purpose of taking an examination for a position in the regular apportioned service than there is for requiring a person already in such service to do
It is true that if, as a result of such examination, he should enter the regular apportioned service, the number of appointments therein accredited to his State would be increased. But there can be no objection on the part of any State to receiving its full quota of appointments, provided the persons accredited thereto are bona fide residents thereof. The manifest purpose of the restrictions as to place of examination and domicile contained in the first proviso to section 7 of the census act is to safeguard the rights of the States and Territories in the apportionment of government offices, and what occurred in Congress in connection with the insertion of this proviso in that section confirms this view (28 Op. 83). In other words, such proviso was intended to prevent other than actual residents of a State from being accredited thereto in the matter of appointment to government office. But persons in the temporary census force had to comply with the requirements of that proviso in order to be appointed. Such being the case, their status as legal residents of the States to which they are accredited is necessarily determined for apportionment purposes while they hold office under the Government. Certainly, it could not be held that because of their absence from their respective States during their term of office they have not been domiciled therein as required by the proviso in question. To require them to return to their States to take another examination would therefore have no significance whatever in determining their actual residence for the purpose of apportionment.
In my judgment, it is a fair reading of the proviso in question to say that it is applicable only to those seeking to obtain positions in the apportioned service of the Government, whether the apportionment is general or special, and has no application to those already in an apportioned service. Persons in unapportioned positions in Washington desiring to enter open competitive examinations for positions in the apportioned service are properly required to return to the States in which they claim residence for the purpose of taking such examinations, because in being appointed to the unapportioned service the question of their residence was not important, and they were not required to meet the tests imposed by Congress in respect to applicants for positions in the apportioned service.
I have not overlooked the fact that the last proviso to section 7 provides that upon the termination of the services of the temporary census force the officers and employees therein "shall not be eligible to appointment or transfer into the classified service of the Government by virtue of their examination or appointment under this act." But Mrs. Sell is not seeking to be appointed or transferred into the classified service by virtue of her examination or appointment under the census act. She must take a new examination and receive a new appointment. The only question is where she shall take it. To require her to return to Minnesota for the purpose, when she might take it here, is utterly useless, from the standpoint of the purpose of the law, since her status as a legal resident of Minnesota is settled. Respectfully,
GEORGE W. WICKERSHAM. The PRESIDENT.
NAVAL OFFICERS-RANK AND PAY OF CAPTAIN JEF
FERSON F. MOSER.
In the case of a retired naval officer who served as midshipman at the
Naval Academy during the civil war and who secured a judgment in the Court of Claims in which it was held that he was entitled to
“three-fourths of the sea pay of the next higher grade" above that held by him at the time of retirement under the act of March 3, 1899 (30 Stat. 1007), wherein it appears that the Court failed to take into consideration the act of June 29, 1906 (34 Stat. 554), of similar importsuch judgment does not estop the Secretary of War from contesting the officer's claim to be retired with the rank of the next higher grade under the provisions of the latter statute.
In a second suit between two parties, where the cause of action is similar
to the cause of action in the first suit, the parties are not precluded from contesting the constitutionality or the existence and force of a statute which was not alluded to or brought to the attention of the court in the former suit.
DEPARTMENT OF JUSTICE,
June 20, 1910. Sir: I have the honor to acknowledge the receipt of your letter of May 27 ultimo in reference to the rank and pay of Capt. Jefferson F. Moser, United States Navy.
Captain Moser was placed on the retired list with the rank he then held on September 29, 1904, on his own application after forty years' service. If he had served during the civil war within the meaning of section 11 of the personnel act of March 3, 1899 (30 Stat. 1007), he was entitled when retired to “be retired with the rank and three-fourths of the sea pay of the next higher grade.” On September 29, 1864, he was appointed a midshipman at the Naval Academy, and was there continuously until after the close of the civil war. The Navy Department held that his service as a student at the academy was not service during the civil war; and that therefore he was not entitled to increased rank under the personnel act. But in a suit brought by Captain Moser for salary of the increased rank, the Court of Claims decided that “service as a midshipman at the Naval Academy from the date of his appointment thereto until the close of the rebellion was service during the civil war,' within the intent and meaning of section 11 of said Navy personnel act, and he was therefore entitled to have been retired with the rank and three-fourths of the sea pay of the next higher grade.” (42 Ct. Cl. 86.)
At the time of this judgment there was in existence another law, the act approved June 29, 1906, which had not been considered in the case. That law provided (34 Stat. 554):
"That any officer of the Navy not above the grade of captain who served with credit as an officer or as an enlisted man in the regular or volunteer forces during the civil war prior to April ninth, eighteen hundred and sixty-five, otherwise than as a cadet, and whose name is borne on the official
register of the Navy, and who has heretofore been, or may hereafter be, retired on account of wounds or disability incident to the service or on account of age, or after fortyyears' service, may, in the discretion of the President, by and with the advice and consent of the Senate, be placed on the retired list of the Navy with the rank and retired pay of one grade above that actually held by him at the time of retirement: Provided, That this act shall not apply to any officer who received an advance of grade at or since the date of his retirement or who has been restored to the Navy and placed on the retired list by virtue of the provisions of a special act of Congress.”
The question presented to me is whether this judgment is under the circumstances res judicata as to the right of Captain Moser to be retired with the rank of the next higher grade; in other words, whether the Government is precluded from contesting his claim to that rank on the ground that he is not entitled to it on account of the provisions of the act of 1906.
That the judgment in the case decided upon the merits is a bar to all further litigation of the same demand is indisputable. All controversy upon that is closed. Its validity can not be contested, no matter what might have been said at the trial for or against it. But it is conclusive only upon such matters as were litigated and determined in the action. Parties are not estopped by a judgment in one cause of action from disputing in another cause of action the doctrines of law applied to the first. (Bigelow, Estoppel, 100.)
Cromwell v. County of Sac (94 U.S. 351); Davis v. Brown (94 U. S. 423); Dennison v. United States (168 U. S. 241); Bernard v. Hoboken (3 Dutch.412); Wentworth v. Racine Co. (99 Wis. 26); Nesbit v. Riverside Independent District, &c. (144 U. S. 610, 620); Virginia-Carolina Chemical Co. v. Kirven (215 U. S. 252).
And so, in a suit between the same parties, upon another although similar cause of action, the parties are not precluded from contesting the constitutionality or existence and force of a statute which was not alluded to or brought to the attention of the court in the former suit.
Boyd v. Alabama (94 U. S. 645); South Ottawa v. Perkins (ib. 260); Philadelphia v. Ridge Ave. Railway Co. (142 Pa. St. 484); Dobbins et al. v. First National Bank of Peoria (112 Ill. 553, 561).
The record, as to what issues were contested and what was decided, in the case in which Captain Moser obtained judgment is clear. The claim was that he was entitled to the "three-fourths of the sea pay of the next higher grade” under the provisions of the naval personnel act. Judgment was given to him for pay upon that basis. There was no contest as to the law of 1906.
It is true the exact question decided by the Court of Claims in the case of Captain Moser is not presented in a later case brought upon a similar cause of action. What was decided was that the officer was entitled to pay for a certain specified time. Admitting that the rank and pay are correlative, and that the right to one is the same as the right to the other, I am asked whether the Secretary of the Navy is estopped, by the judgment heretofore rendered, from refusing to place Captain Moser's name "in the Navy Register in the list of officers in the Navy retired with the rank of rearadmiral.” For the reasons above given I answer that question in the negative. Very respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE Navy.
STATUE OF ROBERT E. LEE, CLOTHED IN CONFEDERATE
UNIFORM, FOR STATUARY HALL, NATIONAL CAPITOL.
No objection can be legally made under existing law to the placing in
Statuary Hall of the National Capitol, by the State of Virginia, of a statue of Robert E. Lee, clothed in confederate uniform.
DEPARTMENT OF JUSTICE,
July 8, 1910. Sir: I have read the resolutions adopted by the Department of New York, Grand Army of the Republic, at Syracuse on June 23, and the communications of Hon. James Tanner with respect to them. The act of July 2,