"They are mere pensioners and do not practically belong to the Army."

The conclusion to be drawn from these statutes and authorities is that before, at the time of, and after the enactment of the District of Columbia Act of 1878, now under consideration, it was established that retired officers were eligible to civil posts under the United States or in the Territories, and the only limitation on this was provided in the Act of 1894, above quoted, to the effect that a retired officer could not receive his compensation as such and a salary of a civil post under the United States unless the civil post was an elective one or one to which he was appointed by the President by and with the advice and consent of the Senate.

It also is established that at the time of the enactment of the District of Columbia Act of 1878 an officer on the active list could not be detailed to a civil post without express authority of law, and could not accept a civil post without forfeiting his commission unless expressly relieved from such a restriction by Congress.

Turning now to the consideration of section 2 of the Act of 1878, and construing it in the light of the conditions above outlined, the question arises: Was it the intention of Congress, by the provisions of the District of Columbia Act, to render ineligible to the office of Commissioner of the District retired Army officers who were, by law, eligible to other civil posts under the Government? Was there any reason why Congress should have made an exception of the office of Commissioner of the District in giving general eligibility for civil posts to retired Army officers?

The Act of 1878 provided, first, for detailing an active officer of the Engineer Corps to act as one of the Commissioners. It also enumerated the qualifications of the other two Commissioners, to wit: that they should be citizens of the United States and actual residents of the District of Columbia for three years next before their appointment, without having claimed residence elsewhere during that period. The peculiar twist given to the reference to appointment from civil life is significant. The express enumeration of the qualifications of the two Commissioners other than

the engineer officer does not include a requirement that they shall be civilians. The Act, instead of specifically stating that they shall be appointed from civil life, merely assumes that they are to be appointed from civil life and refers to and describes them, as a convenient way of designating the two Commissioners other than the engineer officer, as "the two Commissioners to be appointed from civil life." In other words, what Congress did was not to create a rule of eligibility that they should be appointed from civil life, but to assume that such a rule existed and that they would necessarily be appointed from civil life. If such a rule of eligibility existed, it must have been by virtue of some other statute. It has been pointed out that there was no statute rendering ineligible retired officers, but there was a statute rendering ineligible active officers, so that the statute which Congress relied on, and assumed to require appointment from civil life, of the two Commissioners other than the Engineer Commissioner, was a statute that merely disquali fied active officers. It seems reasonably clear, therefore, that in using the phrase "civil life" in this statute, Congress was referring to those engaged in civil life, whether or not retired Army officers, as distinguished from the military life of an officer in active service.

The reference, in the Act, to appointments from civil life is not a specific personal qualification, but a mere reference to that portion of society from which that appointee is to come. It is merely an assumption that he shall be selected from that body of persons in the community who are engaged in civil pursuits. There was no attempt by Congress in the Act of 1878 to establish any new personal qualifications for Commissioners other than that one should be an active engineer officer and the other two should be citizens having residence in the District of Columbia for three years next preceding appointment. If there had been an intent to depart from the policy established by Congress generally and to bar a retired Army officer, such an expression could have been very easily and plainly made to appear.

In using the term "civil life" Congress referred to the activity in life of the appointee. It is the taking of a person from one of two classes of society, military or civil. Military life is led when a person is in the active military

service of the Army and is doing duty in his daily life in carrying out military functions. If he is carrying on military work and that is his life's activity at the time, he is not from civil life, but if he has retired from that activity and his pursuits are civil, then he is from civil life. At least this appears to be the sense in which Congress used the phrase in this statute.

Under the previous Act of 1874 relating to the District of Columbia, retired officers were eligible to the post of District Commissioner. The only additional qualifications specifically provided for the two Commissioners other than the engineer officer were that they should be residents of the District for a stated period. It seems to have been the established policy of Congress in all legislation to make retired officers eligible for civil posts (except diplomatic posts abroad), so that the public might, in proper cases, have the benefit of the services of those retired Army officers who, by reason of ability, training, and experience, might be and become useful public servants in civil posts. If they are eligible for all other posts, elective or appointive by the President by and with the advice and consent of the Senate, what reason could Congress have had to render them ineligible only to the office of Commissioner of the District?

While a retired Army officer is subject to being recalled into military service in time of war, he is not subject to military service in time of peace without his consent. Unless brought back into the military service he is as much in civil life as any other person. There are, throughout the United States, large numbers of retired officers actually engaged in private business and participating to the fullest extent in the civil life of the communities in which they live, and it would be contrary to the ordinary understanding of words to say that they are in military life rather than in civil life.

In the case of United States v. Tyler, 105 U. S. 244, in construing a statute which provided for periodic increases of pay for Army officers, the court held that for the purposes of the statute relating to these increases in pay a retired Army officer was in the Military Establishment.

This decision and other similar rulings under other statutes have been sometimes referred to to show that a retired Army officer has a connection with the Military Establishment, and from that it is argued that he is not in civil life.

In the first place the phrase "appointed from civil life" in the District of Columbia Act must be construed in the sense in which it was used in that connection and in the light of the conditions with which Congress was dealing, and decisions which related to other statutes on other subjects are not necessarily controlling. Furthermore, the fact that a man has a definite connection with the Military Establishment and is subject to being called and recalled into the military service does not prevent him from being properly treated as in civil life.

There are thousands of officers in the Officers' Reserve Corps who now hold commissions and bear a definite relation to the Military Establishment. They are not only subject to call into the military service, as are retired officers, in time of war, but they are subject to being called into the military service in time of peace without their consent for limited periods, and to this extent they are more subject to military duty than are retired officers, who cannot be recalled into the service in time of peace without their consent. None will contend that reserve officers are not in civil life because of such relation to the Military Establishment. It is true there are some other differences between them and retired officers, reserve officers only receiving compensation while in active service, and retired officers receiving what is called compensation but what is really a pension, notwithstanding they are no longer in the military service.

Both are alike in the sense that they are engaged in civil pursuits and active in the civil life of the communities in which they live, and are not in any proper sense in military life unless brought into or recalled into the military service.

In providing that one of the Commissioners shall be an Army engineer, the primary purpose was not to select an Army officer. A competent engineer was sought; his being a military officer was merely incidental. The selection of an officer from the Corps of Engineers made it likely that the Engineer Commissioner would be a man not a resident of the District and without much knowledge of the community or

local conditions. So, to provide that knowledge, it was specified that the other two Commissioners must have been residents of the District for three years. The choice is to be of two men identified with the community, as distinguished from the Engineer Commissioner, who may never have been so identified. The statute did not provide that the two Commissioners must have been three years in civil life, but only that they shall have resided here three years, and it took for granted that they shall be in civil life at the time of their appointment, that is, not then engaged in military pursuits, because, by other statutes, officers actively engaged in military life were disqualified. The length of time a retired officer resident in the District shall have been engaged in civil pursuits does not affect his eligibility. It only bears on his personal qualifications, which are matters of discretion and judgment for the appointing power and the Senate to consider in each case.

By an Act of May 12, 1917 (40 Stat. 72; U. S. Code, Title 10, sec. 371), it was provided:

"All officers and employees of the United States or of the District of Columbia who shall be members of the Officers' Reserve Corps shall be entitled to leave of absence from their respective duties, without loss of pay, time, or efficiency rating, on all days during which they shall be ordered to duty with troops or at field exercises, or for instruction, for periods not to exceed fifteen days in any one calendar year."

This seems to recognize that reserve officers are in civil life and not ineligible to the office of Commissioner of the District.

In People v. Duane, 121 N. Y. 367, the question was whether, under a state statute, a retired Army officer of the United States could hold a civil office. The court analyzes at length the status of retired officers and holds that while in retirement they are, in fact, pensioners, and exercise no functions of a military office.

The conclusions to be drawn from this material are : First: That prior to the enactment of the District of Columbia Act of 1878 all three of the Commissioners of the District might have been retired Army officers.

Second: That before, at the time of, and ever since the enactment of the District of Columbia Act of 1878 retired 141183°-32-VOL 36-26