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tained, and while the power of the President to reduce the existing number of agencies, by consolidation or otherwise, which had previously been asserted, is not expressly impaired, it would seem that in the exercise of such power he would necessarily have to conform to any expression of the legislative will on the subject.
There would be little doubt in my mind on this subject were it not for the act of March 4, 1907. That act, while directing the Secretary of the Interior to make inquiry and report to Congress as to the effect of a reduction of the present pension agencies to one such agency upon the economic execution of the pension laws and the prompt and efficient payment of pensioners, as well as in respect to the inconvenience to pensioners, if any, which would result from such reduction, expressly provides that “this provision shall not be construed as interfering with or limiting the right or power of the President under existing law in respect to the reduction or consolidation of existing pension agencies.” This proviso, while not conferring any additional power upon the President, I think may fairly be said to amount to a recognition of his authority, under existing law, to reduce or consolidate the existing pension agencies. But, in my judgment, it does not enlarge or diminish that power. It simply leaves it where it was, and at that time it was modified by the Act of March 3, 1891.
Nor do I regard the language of the recent appropriation acts as enlarging the power of the President in the premises. Those acts provide (acts of May 28, 1908, 35 Stat. 419; March 4, 1909, 35 Stat. 1058, and June 25, 1910, 36 Stat. 843):
“For salaries of agents for the payment of pensions, at $4,000 each, $72,000, or so much thereof as may be necessary.”
The phrase, “or so much thereof as may be necessary,” like the proviso to the act of March 4, 1907, may be said to imply authority in the Executive to reduce the number of agents, but can not, I think, properly be held to remove the limitation imposed by the act of March 3, 1891, as to the maintenance of the three groups of agencies for the purpose of making payments as therein directed.
I have therefore to advise you that, in my opinion, the President is not authorized to discontinue 17 of the 18 agencies for the payment of Federal pensions, and direct that work now divided among the 18 to be performed by 1 agency, but that his power to reduce or consolidate such agencies is limited by the act of March 3, 1891, to the reduction or consolidation of such agencies with the three groups directed to be established by that act. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE INTERIOR.
COURT-MARTIAL-CENSURE FOR MISCONDUCT NOT A BAR.
Disapproval of conduct and censure by the Secretary of the Navy of a
subordinate officer for misconduct is not such a reprimand, contemplated by section 265 of the Navy Regulations, as will prevent a court
martial proceeding upon the same charge. The reprimand referred to in section 265 of the Navy Regulations is
such a reprimand as is administered under the authority of the statutes enacted and regulations adopted for the control of the Navy.
DEPARTMENT OF JUSTICE,
February 27, 1911. . Sır: I have the honor to acknowledge receipt of your communication of December 31, 1910, relating to the case of A. H. Robnett, passed assistant surgeon, U. S. Navy, in which you inquire whether the reprimand made by the Secretary of the Navy on a charge of misconduct was such a trial and punishment as to prevent a court-martial proceeding upon the same charge.
The facts, briefly stated, are as follows:
On December 13, 1909, Medical Inspector Howard, E. Ames, U. S. Navy, in command of the United States Naval Hospital at Chelsea, Mass., addressed a letter to the commandant of the navy-yard, Boston, in which he made a detailed statement of certain conduct on the part of Doctor Robnett denominated as scandalous, and stamped his action as unbecoming an officer and a gentleman. This letter, with a reply by Doctor Robnett, was transmitted by the commandant to the Secretary of the Navy, and, after stating the facts as ascertained by him, the commandant recommended that, for the reasons assigned, "Passed Assistant Surgeon Robnett be detached from this station and ordered to other duty, and that he also be admonished as to the conduct of which he has been guilty.” On December 30, 1909, the Secretary of the Navy addressed a letter to Doctor Robnett, in which, after detailing the facts relating to his conduct as reported, he said:
“Such conduct merits and receives the disapproval and censure of the department, and your trial by general courtmartial would be seriously considered were it not probable that the notoriety of such trial would be more unfortunate for the good name of the Navy than would be the benefit of the sentence the court might award you for such conduct. You will acknowledge receipt of this communication, a copy of which will be placed with your record, and the incident will be considered closed.”
It is asserted on behalf of Doctor Robnett that the Secretary, in pursuance of the suggestion of the commandant of the Boston Navy-Yard, also detached him from that station and ordered him to duty elsewhere, but there is nothing in the record to show that this was done pursuant to such recommendation, and if it were, such fact would not change my conclusion as to the legal effect of the action taken by the Secretary.
On January 4, 1910, the Navy Department, at the instance of Doctor Ames, ordered a general court-martial of Doctor Robnett on the charge of conduct unbecoming an officer and a gentleman, the specifications thereunder embodying the allegations made in Doctor Ames's letter to the commandant of the Boston Navy-Yard. Counsel for the accused presented a plea in bar, in which was set up as a defense the action of the Secretary of the Navy in reprimanding Doctor Robnett in the language above quoted and in the manner stated, it being insisted that such reprimand was an adjudication of the matters in question and barred the infliction of any other punishment therefor; and
. counsel especially relied, and now rely, upon that part of section 265 of the Navy Regulations, which reads as follows:
And no officer who has been formally reprimanded for an offense shall be subsequently tried therefor, nor sha!l that offense be the subject again of inquiry, except when it may be indispensable to prove a particular habit charged; a private reprimand, however, is no bar to subsequent investigation and trial.”
The question is whether or not this contention of counse) is well founded.
I am of the opinion that it is not, and that the action of the Secretary of the Navy was not such a reprimand as is contemplated by said section 265.
By section 1624, Revised Statutes, it is provided that “The Navy of the United States shall be governed by the following articles:" and then follow sixty articles which specify in detail, among other things, what offenses are punishable, and the punishments that shall be inflicted therefor, and how sentences may be imposed.
Article 4 provides that,
“The punishment of death, or such other punishment as a court-martial may adjudge, may be inflicted on any person in the naval service” for the commission of either of the twenty offenses mentioned therein.
Article 8 provides that
“Such punishment as a court-martial may adjudge may be inflicted on any person in the Navy" who is guilty of profane swearing, falsehood, etc., “or any other scandalous
, , conduct tending to the destruction of good morals," or of either of the other twenty-two offenses mentioned therein.
By article 14 it is provided that,
“Fine and imprisonment, or such other punishment as a court-martial may adjudge, shall be inflicted upon any person in the naval service of the United States' who shall commit either of the offenses of fraud against the United States therein mentioned.
Article 20 provides that every commanding officer of a vessel in the Navy shall obey the rules set out therein, and that every officer offending against such provisions shall be punished “as a court-martial may direct.” "
Article 22 reads:
"All offenses committed by persons belonging to the Navy which are not specified in the foregoing articles shall be punished as a court-martial may direct."
” By article 24 it is provided that
"No commander of a vessel shall inflict upon a commissioned or warrant officer any other punishment than private reprimand, suspension from duty, arrest, or confinement
nor shall he inflict, or cause to be inflicted * * * for a single offense, or at any one time, any other than one" of the punishments named therein.
By section 257 of the Navy Regulations it is provided that punishment shall be in strict conformity with the laws for the government of the Navy; and the material parts of section 265 read as above quoted.
It thus appears that by the statutes and Navy Regulations, there was adopted a comprehensive and complete system of laws for the accusation, trial, and punishment for offenses committed by officers and seamen; and by the express language of those statutes and regulations, a reprimand may be administered for certain minor offenses by the commander of a vessel, or, for those and other offenses, by direction of a court-martial; but there is no provision therein for a reprimand by the Secretary of the Navy, nor is there any expression indicating that when such reprimand is administered by the Secretary, it shall be considered as a punishment within the meaning of those regulations.
It is my opinion that the reprimand referred to in section 265 is such a reprimand as may be administered under the authority of the statutes enacted and regulations adopted for the control of the Navy, and none other. No doubt the Secretary of the Navy may, within his discretion, when he believes it for the good of the service, send communications to subordinate officers which may be in the nature of a reprimand. This right is necessarily vested in him as the chief officer of that department; but such communications can not be regarded in the nature of a punishment as defined in the regulations.