porary) of the line on October 20, 1925. Effective March 4, 1927, under authority of section 5 of the Act of July 3, 1926, they were appointed by the President, by and with the advice and consent of the Senate, as lieutenants of the regular line.

Upon each such transfer from the engineer corps to the line and upon each such appointment from the temporary line to the regular line, as I understand from the papers accompanying your letter, the officer was accorded precedence in accordance with the statute and no question is raised relative thereto. Subsequently, however, as officers have been promoted from a lower to a higher grade each has been accorded precedence with respect to officers already in the higher grade according to the dates of their respective commissions in such grade, without regard to former status. It is urged in behalf of Lieutenant Awalt that his precedence with respect to others in the grade to which he has now been advanced is to be determined, not by precedence of commissions in that grade, but by precedence of original commissions in the permanent service regardless of grade.

This contention is predicated upon sections 3, 5, and 13 of the Act of July 3, 1926, c. 742, 44 Stat. pt. 2, p. 815, which, in so far as here pertinent, read as follows:

"SEC. 3. That all lieutenants (engineering) not holding temporary appointments as lieutenant commanders (engineering), all lieutenants (junior grade) (engineering) and all ensigns (engineering), both regular and temporary, who are in the Coast Guard on July 1, 1926, shall be transferred to the line of the Coast Guard and shall be commissioned accordingly, the regular engineer officers to become regular line officers and temporary engineer officers to become temporary line officers, respectively. Engineer officers thus transferred shall take precedence with the line officers in the grades to which transferred in accordance with total lengths of continuous commissioned service in the Coast Guard. All cadet engineers who are in the service on July 1, 1926, shall be appointed cadets of the line as of that date and service as cadet engineer shall be counted as cadet service.

"SEC. 5. That the President is authorized to appoint, by and with the advice and consent of the Senate, temporary commissioned officers to be commissioned officers in the reg

34967°-36-VOL 37-7

ular Coast Guard in grades not above lieutenant: Provided, That no temporary officer shall be appointed a regular commissioned officer until his entire fitness for such appointment has been established to the satisfaction of a board of commissioned officers of the Coast Guard appointed by the President, and until he has been pronounced physically qualified by a board of medical officers: Provided further, That temporary officers who may be thus commissioned in the regular Coast Guard shall take rank in the grades in which they are appointed in accordance with the dates of their commissions as regular officers.

"SEC. 13. That nothing contained in this Act shall be construed to reduce the rank, pay, or allowances of any commissioned officer of the Coast Guard as now provided by law."

The established practice in the Coast Guard both before and since the enactment of this statute is disclosed by your letter of October 25th, from which the following appears: The regulations of the Revenue Cutter Service of October 3, 1834 (the earliest available), provided that "each officer will bear rank according to the date of his commission." The regulations of the Revenue Marine of November 1, 1843, provided that "officers shall take precedence and command in their respective ranks according to the priority of the date of their commissions." Regulations issued in 1862 and 1871 contained no reference to precedence. Regulations issued in 1894 and in 1907 provided for precedence of officers "according to the order in which their names appear on the official register." An Act of Congress of April 16, 1908, c. 145, 35 Stat. 61, 63 (U. S. C. Title 14, sec. 8), provided: "That precedence between line and engineer officers of the same rank shall be determined by length of continuous service as a commissioned officer."

66

The next issue of the regulations, promulgated in 1923 and still effective, incorporated the change required by the statute and provided, in article 604:

"Officers take precedence in their several grades according to the order in which their names are borne upon the official Coast Guard Register. Precedence between line and engineer officers of the same rank is determined by length of continuous service as a commissioned officer."

The regulations of 1834 and 1843 were reasonably susceptible of interpretation as contemplating precedence among officers of the same grade and determining it according to the dates of their commissions in such grade, and it appears that they were in fact so interpreted. It further appears that the rule thus specifically prescribed in the earlier regulations has also been followed in the preparation of the registers under the regulations of 1862, 1871, 1894, 1907, and 1923, except that the names of graduating cadets have been entered in the registers according to class standing regardless of the fact that individual members of the class might actually take the oath of office upon different dates, and except as the precedence of particular officers has been affected by loss of numbers under statutes and regulations hereinafter indicated.

Since line officers and engineer officers are carried on separate precedence lists, the Act of April 16, 1908, required no change in the preparation of the registers, and was limited in effect to the determination of precedence between a line officer and a staff officer when cooperating or otherwise brought together. It made effective in the Coast Guard a rule then followed in the Navy.

The Act of July 3, 1926, was not designed to change the rules respecting precedence in the Coast Guard therefore in existence. Its primary purpose was to increase the number of line officers in order to meet an acute shortage by transferring to the regular line engineer officers of the specified grades and granting permanent commissions to temporary line officers whose fitness should be established. (House Report 1022, 69th Cong., 1st sess.) Necessarily incident to these transfers and appointments was the question of precedence of these men within the grade to which they were transferred or appointed, and precedence within such grades was accordingly prescribed by the Act.

After its passage the Act was administratively interpreted as prescribing merely the initial position of the former engineer officer, or the former temporary officer, within the grade in the regular line to which he was transferred or appointed. Having thus attained his precedence in his initial grade, officers in grades junior to his were not, upon

promotion to his grade, given rank over him because of seniority of original commission. From the initial rank thus fixed by the statute promotion in the line was in accord with the established practice prevailing in the service before the Act of July 3, 1926, and the registers have been prepared accordingly during the six years that have elapsed since the enactment of this statute. Each officer, regardless of former status, has advanced step by step as those ahead of him have advanced, taking his position in the next higher grade, upon promotion thereto, immediately below the officer last previously commissioned therein, except as affected by regulations and statutory provisions under which an officer is subject to lose numbers, or to stand still on the precedence list for a specified period, as a penalty upon conviction by court martial or for failure to pass professional examinations. (Act of May 26, 1906, c. 2556, 34 Stat. 200; U. S. C. Title 14, sec. 143; Coast Guard Regulations 1923, article 239.)

This settled practice accords with the law unless the provisions of sections 3 and 5 of the Act of July 3, 1926, were intended to have continuous operation throughout all grades, and were not intended to be confined in their application to the fixing of the officer's initial rank within the grade to which he was transferred or appointed.

To give any such continuous operation to sections 3 and 5 of the Act would immediately present anomalous situations which could hardly have been intended by Congress. For instance, an ensign, because of his prior commission, would take precedence over former temporary officers permanently commissioned in the regular line as lieutenants, or as lieutenants (junior grade), whenever the ensign should be promoted to their grade; and if, prior to such promotion, he had incurred a loss of numbers for failure to pass a professional examination he would nevertheless wholly escape the effect of the penalty when thus promoted.

A situation even more anomalous is presented by the case of a former temporay officer-a lieutenant, for exampleplaced at the bottom of the list of lieutenants upon his appointment in the regular line. His first permanent commission necessarily bears the date of his transfer from temporary to permanent service, and is therefore later in time

than the commission of every lieutenant (junior grade) and every ensign already in the line. All these officers, inferior to him in official rank upon his transfer, it is said, immediately become his superiors in official rank upon promotion to his grade. And so he must stand still until every subordinate in the regular line at the time of his appointment, who is thereafter promoted to his grade, has passed him. This rule does not merely favor officers originally commissioned in the permanent service. Of two temporary officers the inferior in rank, transferred to the permanent service in a lower grade one day before his superior, would, upon reaching his superior's grade, outrank him.

The provisions of sections 3 and 5 of the Act of July 3, 1926, contemplate no such results. They prescribe a method for determining precedence of former engineer officers and former temporary officers only "in the grades to which transferred" and "in the grades in which they are appointed," respectively. Thus, they fix the initial rank of the officer upon his transfer or appointment to the regular line. The rules prevailing before the enactment of the statute which govern maintenance of standing and promotions in the line are not otherwise affected. The statute fixes the initial rank, and the old rules, applied in accordance with established practice, determine the question of precedence thereafter.

It has been suggested in behalf of Lieutenant Awalt that a construction which prevents him from going ahead of former temporary officers appointed in the regular line subsequent to his entry into the service would effect a reduction in rank, contrary to the provisions of section 13 of the Act of July 3, 1926. Necessarily, when additional officers are appointed in higher grades, these below are removed by a greater number of steps from the top, considering the line as a whole; but the statute clearly provides for that, and Awalt's rank of ensign was not reduced, within the meaning of section 13, by thus increasing the number of officers in higher grades of the regular line.

I find nothing in the language of the statute or in its legislative history to indicate that Congress intended that a subordinate officer, upon promotion to a higher grade, should