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to lease lands in a State without the consent of the State; and under the present circumstances for a period longer than twelve years. Respectfully,
GEORGE W. WICKERSHAM. THE SECRETARY OF STATE.
COMMANDANT OF MARINE CORPS-RETIREMENT-TEMPO
RARY FILLING OF VACANCY.
After a commandant of the U.S. Marine Corps is placed upon the retired
list of officers of that corps, on account of age, he can not legally be retained in his former office of commandant of the Marine Corps until his
successor is appointed. An officer on the active list of the Marine Corps can not be temporarily
detailed to fill a vacancy thus created, with authority to transact official business and sign orders and correspondence as “Acting Com
mandant, U. S. Marine Corps.”' During a vacancy caused by the retirement of a commandant of the
United States Marine Corps, the orders and correspondence connected with the office should be signed by the Secretary of the Navy, or by the Acting Secretary, in person.
DEPARTMENT OF JUSTICE,
November 30, 1910. Sir: I have the honor to respond to the request in your communication of the 15th instant for an opinion upon the following questions, to wit:
“1. Whether, when Maj. Gen. George F. Elliott, commandant, U. S. Marine Corps, is placed upon the retired list of officers of the Marine Corps. November 30, 1910, on account of age, that officer could legally be retained in his present office of commandant of the Marine Corps until his successor is appointed.
“2. Whether an officer on the active list of the Marine Corps could be temporarily detailed to fill the vacancy caused by General Elliott's retirement, with authority to transact official business and sign orders and correspondence as 'Acting Commandant, U. S. Marine Corps.'
“3. If the foregoing questions be answered in the negative, whether an officer on the active or retired list of the Marine Corps could be detailed, temporarily, to transact
the business connected with the office of the commandant, but to sign orders and correspondence ‘By direction of the Secretary of the Navy.””
Aside from the question whether the Marine Corps can be regarded as a bureau, sections 178, 179, and 180 of the Revised Statutes, which provide for the filling of a temporary vacancy in the office of the chief of any bureau, or of any officer thereof, "in case of the death, resignation, absence, or sickness of the incumbent,” have here no application, as the vacancy in the office of commandant of the United States Marine Corps will not result from either of the causes mentioned. (27 Op. 337, 345.)
But my attention is called to that provision of the act of June 7, 1900, ch. 859 (31 Stat. 703), which reads:
“During a period of twelve years from the passage of this Act any naval officer on the retired list may, in the discretion of the Secretary of the Navy, be ordered to such duty as he may be able to perform at sea or on shore, and while so employed shall receive the pay and allowances of an officer of the active list of the grade from which he was retired," and it is suggested that under this statute MajorGeneral Elliott might be assigned temporarily to the position created by his retirement.
Without reference to whether General Elliott will, after retirement, be a “naval officer on the retired list,” within the meaning of this act, or whether a retired officer may, under its provisions, be assigned to duty in the Marine Corps, I do not think this statute has the effect suggested. By section 18 of the act of March 3, 1899, ch. 413 (30 Stat. 1008), entitled “An act to reorganize and increase the efficiency of the personnel of the Navy and Marine Corps of the United States," it is provided that the active list of the line officers of the United States Marine Corps shall consist of one brigadier-general, five colonels, and the other officers designated, and that “vacancies in the grade of brigadiergeneral shall be filled by selection from officers on the active list of the Marine Corps not below the grade of field officer.”
By act of July 1, 1902, ch. 1368 (32 Stat. 686), it was provided:
“That from and after the date of the approval of this act, the commandant of the Marine Corps shall have the rank, pay, and allowances of a major-general in the Army, and when a vacancy shall occur in the office of commandant of the corps, on the expiration of the service of the present incumbent, by retirement or otherwise, the commandant of the Marine Corps shall thereafter have the rank, pay, and allowances of a brigadier-general.”
And by act of May 13, 1908, ch. 166 (35 Stat. 155) it was provided:
“That from and after the passage of this act, and in order to further increase the efficiency of the United States Marine Corps, the following additional officers, noncommissioned officers, drummers, trumpeters, and privates to those now provided by law for said corps are hereby authorized and directed, namely: One major-general commandant, in lieu of the present brigadier-general commandant.
“That the vacancies now existing in the line and staff departments of the United States Marine Corps and those created by this act shall be filled in the manner provided by law.”
It thus appears that Congress has repeatedly passed legislation dealing particularly with the personnel of the officers of the Marine Corps, and especially with the commandant, designating from what class of officers vacancies shall be filled and expressly requiring that the commandant shall be selected from the active list of officers. In speaking of filling a vacancy no qualifying word is used to indicate that reference is had to only permanent appointments, and the statutes were apparently intended to apply to all appointments to perform the duties of the office, whether permanent or for a limited period of time.
It is a well-recognized principle of construction that an act which relates specially to a particular subject is not modified or repealed by a subsequent general statute, though such general statute might, in the absence of the special one, apply to the matter to which it relates, unless
the intention of the legislative body to the contrary is made clearly manifest. (Endlich Inter. Stat., sec. 223; 36 Cyc. 1087.)
But, not only is there nothing in this very general provision of the act of 1900 to indicate that Congress intended for it to apply to a vacancy in the office of commandant of the Marine Corps, but some of the special statutes relating to this office, which show that no change in making appointments thereto was contemplated, have been enacted since the passage of the said act.
If full effect were given to the broad provisions of that act, the result would be most far-reaching and extraordinary. In the present case, General Elliott, though on the retired list, might be assigned for an indefinite period to perform the duties of commandant of the Marine Corps, when he could not be so assigned without appointment to the position, if he were on the active list, though the statutes clearly contemplate that its duties shall not be performed by an officer not on the active list.
Sections 177, 178, 179, and 180, Revised Statutes, provide that the positions of chiefs of bureaus shall not be filled by officers below certain grades; yet, under the construction contended for, when an officer below the specified grades is retired, he, though ineligible before, might at once be assigned by the Secretary of the Navy to the head of a bureau; and as there is no limitation as to the length of time a vacancy may exist, the assignment might become practically permanent.
It can not be believed that Congress intended any such effect to be given to this general act, and I understand that your department has never so interpreted it, but has treated it as applying only to duties with reference to which there exists no special legislation.
I am, therefore, constrained to answer the first two questions in the negative.
With reference to the manner and by whom the duties of the office shall be administered during the vacancy, I will say that section 1621, Revised Statutes, provides:
“The Marine Corps shall, at all times, be subject to the laws and regulations established for the government of the Navy, except when detached for service with the army by order of the President; and when so detached they shall be subject to the rules and articles of war prescribed for the government of the Army.”
In United States v. Dunn (120 U. S. 249, 253), in considering the status of the Marine Corps, the Supreme Court summed up their conclusion as follows:
"We are of opinion that, taking all these statutes and the practice of the Government together, they are a military body, primarily belonging to the Navy, and under the control of the head of the naval department, with liability to be ordered to service in connection with the Army, and in that case under the command of army officers." And in an opinion prepared by Solicitor-General Bowers, and transmitted to your department on October 6, 1909 (28 Op., 19), it was said:
“The statute leaves no room for doubt. The Marine Corps is stated to be 'at all times' subject to the laws and regulations established for the government of the Navy, except when detached for service with the Army by order of the President. Nothing but such order by the President, or by his authority, can alter the ordinary connection of the Marine Corps with the Navy and connect that corps with the Army.
Clearly, therefore, in the absence of a special order from the President, detaching the Marine Corps for service with the Army, the office of commandant is under the direct supervision and control of the Secretary of the Navy, and its duties may be performed by him or by the Acting Secretary. (Swaim v. United States (165 U. S. 553).)
But these duties must be performed under his supervision, and not independently by some one detailed by him for that purpose; and I think, therefore, the orders and correspondence should be signed by the Secretary of the Navy or the Acting Secretary in person. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE NAVY.