Postmaster-Expiration of Term.

shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold office for four years unless sooner removed or suspended according to law.

1

By the same statute (Rev. Stat., 3852, 3853, 3854) provision is made for the compensation of the various postmasters and their division into classes, and, further, for the readjustment of their salaries by the Postmaster-General once in every two years, or in special cases oftener, if he shall deem it expedient. At the time when the officer in question was appointed, the office was one known as a "Presidential office"-that is, one to which the President had the right to appoint; but by the readjustment of the salaries, as I understand your question, the office passed into the fourth class, and if a new appointment were to be made it should be made by virtue of the statutes by the Postmaster-General.

I am of opinion that the reduction of the office from a Presidential appointment to one where, if there were a vacancy, the Postmaster-General would appoint, does not create a vacancy in the office and thus give the Postmaster-General the power of appointment. By the terms of the commission which the postmaster received (as he was appointed by the President and confirmed by the Senate), he was to remain for the term of four years, unless sooner removed according to law. The reduction in the pay of the office cannot be construed as a removal of the incumbent, which is the only contingency contemplated by his commission which would terminate his incumbency. The office itself exists, and he is entitled to exercise its functions, by virtue of his Presidential appointment and commission, notwithstanding that by the reduction of the salaries made by the Postmaster-General in readjusting them, the office itself has passed into one of the fourth class.

Very respectfully, your obedient servant,

Hon. DAVID M. KEY,

Postmaster-General.

CHAS. DEVENS.

Proceedings of Naval Examining Board- chearing.

REFUND OF CUSTOMS DUTIES.

In executing the act of March 3, 1875, chap. 136, the Secretary of the Treasury is not restricted to an application of a decision of the Supreme Court to such articles only as are specifically embraced therein, but may properly extend his official action to all articles within the principle of the decision.

DEPARTMENT OF JUSTICE,

May 29, 1878.

SIR: In reply to yours of the 24th instant, referring to the decision of the Supreme Court of the United States in the recent case of Arthur, collector, &c., v. Homer et al., and asking in that connection whether in executing the act of March 3, 1875 (18 Stats., 469), you are limited to an application of the above decision to such articles only as are specifically embraced therein, or may carry out the same in regard to all articles within its principle, I have to say that in my opinion you are not limited to such articles only as are specifically embraced in the above-named cases, but may properly extend your official action, as regards both the refunding of duties already paid and the reversing of rulings heretofore made in your Department, to all articles within the principle governing the above case, wherever the same is plainly in point.

It seems to me that this is a correct general rule of action under such circumstances.

Very respectfully, your obedient servant,

The SECRETARY OF THE TREASURY.

CHAS. DEVENS.

PROCEEDINGS OF NAVAL EXAMINING BOARD-REHEARING. A naval officer having appeared before an examining board (organized and conducted under sections 1493 to 1505 Rev. Stat.), and the examination being temporarily suspended, was granted permision to go home and to be absent until notified by the board to appear. He failed to receive this notice until after the examination, which was resumed during his absence, had been concluded. The proceedings and findings of the board were approved by the President and his order in the case duly executed by the retirement of the officer (under section 1447 Rev. Stat.). But the vacancy created by such retirement

Proceedings of Naval Examining Board-Rehearing.

remains unfilled, and no rights of any other person have intervened. Held that the action of the President can be revoked, and the officer allowed a rehearing.

DEPARTMENT OF JUSTICE,

May 29, 1878.

SIR: Your letter of the 22d instant proposes the follow. ing inquiry:

"The proceedings and finding of an examining board (organized and conducted under sections 1493 to 1505 of the Revised Statutes) having been approved by the President of the United States, and his orders in the case duly executed by the retirement of the officer (under section 1447 of the Revised Statutes) as not recommended for promotion-and when the vacancy created by such retirement has not been filled-can the President revoke his action for the purpose of allowing the officer a rehearing?"

It appears by your statement, which accompanies the inquiry, that after the officer had appeared before the board the examination was temporarily suspended; that he was granted permission to go home, and to be absent until notified by the board to appear; that he failed to receive this notice until after the examination had been concluded and he had been retired, in consequence of which he was debarred the right of presenting material testimony in his defense.

By section 1500 of the Revised Statutes it is provided that "any officer whose case is to be acted upon by such examining board shall have the right to be present, if he so desires, and to submit a statement of his case on oath"; and by section 1503 it is provided that "no officer shall be rejected until after such public examination of himself and of the records of the Navy Department in his case, unless he fails, after having been duly notified, to appear before said board."

The statutes treat as of great importance the right of the officer to be present and submit a statement of his case to the board which examines him. It is therefore obvious that in the present case, as the officer had actually failed to be present at the time that his case was disposed of (although he received the earlier notice and was present at the first meeting of the board), he has been deprived, by the accidental circumstance of failing to receive the notice of the time at which the board

Retired Officers of the Navy.

recommenced its sessions, of a right that is deemed of great importance.

It is not necessary to consider in this case whether, if the vacancy created by his retirement had been filled, it would be possible to do him full justice. It appears that the vacancy has not been filled; that no rights of any other person have therefore intervened. All that has been done is the act of the President directing his retirement. In my opin ion, this act is an act revocable by the President upon such a state of facts as that which is presented to you. Very respectfully, your obedient servant,

Hon. R. W. THOMPSON,

Secretary of the Navy.

CHAS. DEVENS.

RETIRED OFFICERS OF THE NAVY.

Where a naval officer is transferred, under section 1594 Rev. Stat., from the furlough list to the retired pay list, the causes for his retirement determine the rate of pay to which he is entitled under section 1588 Rev. Stat. An officer retired on furlough pay from causes not incident to the service cannot, by the action of the Executive, be transferred to the 75 per centum retired pay list provided for by the last mentioned section.

DEPARTMENT OF JUSTICE,

May 29, 1878.

SIR Referring to your letter of the 6th instant, which inquires, first, "whether an officer transferred, under section 1594 of the Revised Statutes, from the furlough list to the retired pay list, no particular designation of pay having been made in the nomination, can receive the higher rate of pay provided for in section 1588 of the Revised Statutes, irrespective of the conditions or circumstances of his retirement," I have to reply to this inquiry: The right to transfer from the furlough list to the retired list is undoubtedly intended to enable the Executive to exercise an act of grace, and to add to the pay of the officer upon the furlough pay list, under section 1594 of the Revised Statutes; but when the party is placed upon the retired list the terms and conditions of his retirement determine the pay which he is to receive. If the

Retired Officers of the Navy.

cause of his retirement is one of the number specified as entitling a retired officer to the payment of 75 per centum of the sea-pay, he is entitled to such payment. If the cause of his retirement is any other than those specified, he is entitled only to half the sea-pay provided.

Your letter suggests that nominations for such transfer have always been made simply in the words "furlough to the retired pay list," without any indication as to the rate of the retired pay. That form of nomination is undoubtedly correct, as when the officer is placed upon the retired list the causes for his retirement determine the rate of pay to which he is entitled. I do not find any ground for the authority suggested on the part of the Executive to designate the rate of pay which the retired officer is to receive. That must be determined by the class of officers within which he comes by reason of the cause of his retirement. Nor do I understand that it is the right of the President, with the concurrence of the Senate, to place upon the 75 per centum sea-pay list any officers excepting those who come within the class mentioned in the first clause of section 1588 of the Revised Statutes. This is a general law, and it cannot be controlled by the action of the Executive, even in concurrence with the Senate.

The second inquiry of your letter is substantially answered by that which I have already written. That inquiry is, "whether it would be lawful, under section 1594 of the Revised Statutes, to nominate an officer who had been retired on furlough pay from causes not incident to the service, for transfer to the 75 per centum retired pay list under section 1588 of the Revised Statutes, and if the officer so nominated, confirmed, and duly transferred could receive that rate of pay."

In my opinion no such nomination should be made; and if it were made and confirmed it would not be the duty of the accounting officer to pay 75 per cent. of the sea-pay to an officer thus retired.

Very respectfully, your obedient servant,

Hon. R. W. THOMPSON,

CHAS. DEVENS.

Secretary of the Navy.