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bia, and any one of the three Commissioners provided for in the Act of 1874 might have been a retired Army officer. There was a statute in force at that time that prohibited officers on the active list from accepting a civil post, so that none of the three Commissioners provided for in the Act of 1874 could have been an officer on the active list. It will be noted that the Act of 1874 provided for detailing an officer of the Engineer Corps on the active list to certain work under the Commissioners, and provided that he should not be considered to hold a civil office. That was to prevent a forfeiture of his commission under another statute hereafter referred to. At the time of the passage of the Act of 1878, which we are now construing, retired Army officers were generally eligible to hold civil posts under the United States, and there was in effect a statute prohibiting an officer on the active list from accepting a civil office on penalty of forfeiting his commission.

Before considering further the meaning of the provisions of the Act of 1878, it is desirable at this point to refer to the statutes relating to the eligibility of retired and active officers to civil posts under the United States. The Act of July 15, 1870, which became section 1222 of the Revised Statutes of 1878, was as follows:

"No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated."

With respect to retired officers, the first specific ruling which contains a comprehensive statement as to their eligibility to hold civil office appears in the opinion of Attorney General Devens, dated June 11, 1877 (15 Op. 308). Upon the statute in force then, and at the time of the passage of the District of Columbia Act, the Attorney General ruled in this language:

"Your second inquiry is whether a retired officer may hold a civil office under the United States Government.

"The provisions of the statutes in regard to retired offi cers direct that they may be assigned to duty at the Soldiers' Home under certain circumstances, and that they

shall not be assignable to any other duty. (Rev. Stat., sec. 1259.) And, further, that they may on their own application be detailed to serve as professors in any college. (Sec. 1260.) It would not, in my opinion, be a legitimate construction of these two sections to say that they prohibit an officer from accepting or being appointed to a purely civil office under the United States Government. In the absence of any provision of law forbidding such officers to hold civil offices, especially when these sections are taken in connection with the law that officers upon the active list are (by section 1222 of the Revised Statutes) held to have vacated their commissions by the acceptance of any civil office, and that all officers who accept or hold appointments in the diplomatic or consular service are (by section 1223) considered as having resigned their places in the Army, with the exception above alluded to, it must be considered that a retired officer is not precluded from holding a civil office under the United States Government, unless in the consular or diplomatic service."

This opinion was approved and the ruling renewed in an opinion by Attorney General W. H. H. Miller on April 13, 1889 (19 Op. 283). The Attorney General said (pp. 284285):

"On the 11th of June, 1877, like questions were submitted to Attorney General Devens. In his reply (15 Opin. 306) he considers and interprets all the sections to which you refer, and declares: 'Sections 1763, 1764, and 1765, above referred to, are condensations from statutes which were in existence at the time that this decision (Converse v. United States) was made, and in conformity with it I deem it my duty, in answer to your inquiry, to say that a retired officer may draw his pay as such, and may also draw his salary of any civil office which he may hold under the Government, assuming always that the duties of the civil office are performed under and by virtue of a commission appointing him to that office which he holds in addition to his rank as a retired officer.'

"This interpretation is sustained by the Court of Claims in Meigs v. United States (19 C. Cls. R. 497), and by the Supreme Court in Converse v. United States (21 How. 464),

United States v. Brindle (10 U. S. R. 688), and United States v. Saunders (120 U. S. R. 126), in which last case Miller, J., delivering the opinion, declares:

"We are of opinion that, taking these sections (1763, 1764, and 1765) all together, the purpose of this legislation was to prevent a person holding an office or appointment, for which the law provides a definite compensation by way of salary or otherwise, which is intended to cover all the services which, as such officer, he may be called upon to render, from receiving extra compensation, additional allowances, or pay for other services which may be required of him either by act of Congress or by order of the head of his Department, or in any other mode, added to or connected with the regular duties of the place which he holds; but that they have no application to the case of two distinct offices, places, or employments, each of which has its own duties and its own compensation, which offices may both be held by one person at the same time. In the latter case he is in the eye of the law two officers, or holds two places or appointments, the functions of which are separate and distinct, and, according to all the decisions, he is in such case entitled to recover the two compensations.'

"I am of opinion that the above interpretation of sections 1259, 1763, 1764, and 1765, Revised Statutes, to which you refer, is well established alike by reason, precedent, and authority."

By the Act of July 31, 1894 (28 Stat., chap. 174, sec. 2, p. 206; see Title 5, sec. 62, U. S. Code), Congress expressly recognized the eligibility of retired officers to hold any civil post to which they might be elected or to which the President might appoint them by and with the advice and consent of the Senate, in the following provisions:

"§ 62. Holding other lucrative office. No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate.

Retired enlisted men of the Army, Navy, Marine Corps, or Coast Guard retired for any cause, and retired officers of the Army, Navy, Marine Corps, or Coast Guard who have been retired for injuries received in battle or for injuries or incapacity incurred in line of duty shall not, within the meaning of this section, be construed to hold or to have held an office during such retirement."

In the Digest of Opinions of the Judge Advocate General of the Army, Revised Edition, 1901, section 2220, page 625, it was stated:

"There is no statute of the United States or regulation of the War Department which prevents a retired enlisted man of the Army from accepting an office or employment under either the United States or a State. Held, therefore, that there was no law or regulation of the United States which would prevent a retired enlisted man from organizing and drilling a militia company. (Card 3638, November, 1897.)"

As further evidence of the policy of Congress to render retired officers eligible to civil posts, reference may be made to section 1860, subdivision 4, Title XXIII, of the Revised Statutes of 1878, in which Congress, in legislating for the Territories, provided:

"No person belonging to the Army or Navy shall be elected to or hold any civil office or appointment in any Territory." While that statute was in force, a retired officer of the United States Army was elected to a Territorial civil post and held by the Territorial court to be ineligible.

Hill v. Territory, 7 Pac. 63.

That was in 1882. At the very next session of Congress, an amendment was offered and passed to section 1860 of the Revised Statutes to make it read as follows:

"No person belonging to the Army or Navy shall be elected to or hold any civil office or appointment in any Territory except officers of the Army on the retired-list." (22 Stat. 567.)

The committee report explaining this amendment is disclosed in the following extract from the Congressional Record:

"Mr. RANDALL. I ask that the report accompanying the bill be read.

"The report was read, as follows:

"By the provisions of the several organic acts of the Territories the Legislatures thereof were invested with authority to prescribe the qualifications of elective officers therein, with certain specified restrictions. Among these restrictions was one declaring that "no person belonging to the Army or Navy shall be elected to or hold any civil office or appointment" in such Territories. These provisions, so restricted, are embodied in section 1860 of the Revised Statutes.

"At the time of their original enactment, no retired-list of Army officers existed. Evidently, then, this restriction was not intended to apply to such officers on such list. Since the legislation of Congress creating this list, and the reenactment of these provisions in the revision of the statutes, some of the Territorial courts have, however, so construed these statutes as to proclude this worthy class of persons from holding civil office.

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Practically these persons are private citizens. Their relations to the Army in no way interfere with their discharge of such official duty. In most if not all of the States their eligibility thereto remains unimpaired. No sound reason can be perceived why they should not enjoy a like privilege in the Territories. The legislative assembly of one of the Territories, by a unanimous vote of the members of both branches, has recently memorialized Congress in this behalf, and the same feeling appears to exist in the others.

"At all events this restriction upon the legislative power of the Territories, so far as it applies to these retired Army officers, should, your committee believe, be removed. "The passage of the accompanying bill is therefore recommended.""

Cong. Rec., vol. 14, pt. 1, p. 31.

In the Congressional Record, volume 14, part 1, page 473, in connection with this legislation, one Congressman referred to the fact

"that a retired Army officer in any of the States is at liberty to engage in employment in civil life."

and in another place in the Record (p. 473) it was said, referring to retired Army officers:

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