ten years' service in the Marine Corps. That the vacancies created by this act in the quartermaster's department of said corps shall be filled, first by promotion according to seniority of the officers in this department, and then by selection from the line officers on the active list of said corps not below the grade of first lieutenant: Provided, That all vacancies hereafter occurring in the staff of the Marine Corps shall be filled first by promotion according to seniority of the officers in their respective departments, and then by selection from officers of the line on the active list, as hereinbefore provided for."

Here, provision is made for filling the vacancies created by this act in three different departments of the Marine Corpsthat of the adjutant and inspector, that of the quartermas ter, and that of the paymaster-those in the first and last of which are to be filled in the same way, while those in the quartermaster's department are to be filled in a way somewhat different. But, in each case, when the question of seniority occurs, it is not seniority in the service, but seniority in the particular department. This seniority, while it might, perhaps, affect the relative rank of officers in the same department, can not offset such relative rank as between officers of different departments. It may well happen, as it does in this case, that one officer may be senior in one department, while the other is much his senior in service.

Whatever effect, if any, this section may have, in a possible case, in determining the relative rank of officers in the same department, I do not think it has any in the case under

consideration.

The section is immaterial to this question for another reason also. It is merely directory to the appointing power as to the course to be pursued in filling vacancies, and has nothing to do with the relative rank of officers after their appointment, and would have nothing to do with this, so long as the officers held their commissions, even if the rule prescribed were violated in the selection and a junior instead of a senior in the department were selected.

The question you submit appears to be without any statutory answer, except as it may be affected by those general principles recognized in the statutes relating to both the

Army and the Navy, and, as I understand, recognized also in practice in both these branches of the service, which takes into favorable account length of previous service, seniority and promotion in due course. As to these and similar considerations, your department is much better qualified than I am to pass upon them and give to them their proper weight in determining this question of relative rank, which, it would appear, must be determined more upon such considerations than as a mere question of law.

As to the difference between promotion and appointment, in fixing the relative rank of officers, it may be observed that what is technically called an appointment may be in every practical sense a promotion. As is said in 17 Opinions, 196:

"Appointment is the selection of persons not now in the Army as officers of it, or the designation by selection of an officer already in the Army to a vacancy which is not recognized by the law or the regulations to be filled by promotion according to seniority. Promotion is the advancement of officers already in the Army according to seniority to vacancies happening in the different arms of the service, and according to rules prescribed by law or by regulations having the force of law."

Without vouching for the strict accuracy or completeness of these definitions it is apparent that the advancement of an officer to a higher grade, and to which he could not then succeed in due course by seniority, while called an appointment, is in fact and effect a promotion, and it would seem that an officer thus advanced should be entitled to whatever benefit attaches to promotion. While promotion receives favorable regard, this is so because of the merit which it implies, and this implication is quite as strong, at least, where an officer is advanced faster than he could be in regular course.

This was the case with Major Laucheimer, who was advanced from captain to assistant adjutant and inspector, with the rank of major, and this, by whatever name it be technically called, is in fact a promotion; and unless there be something in the rules or practice of your Department to indicate otherwise, I think that, with reference to the ques

tion you submit, his advancement should be taken as a promotion, and as both officers were in fact promoted, there is nothing in this regard to affect their relative rank.

And there is another consideration. The commission and induction into office of Major Laucheimer each antedated by several days that of Major McCauley, and during that period the former ranked the latter. Is this rank lost or a superior one conferred by the subsequent promotion of McCauley to the same grade? Here also the answer to the question may be controlled by the rules and practice of your department, with which I am not familiar; but unless it is, I would answer the questions in the negative.

I think also that, according to the preference given, throughout the statutes and by the rules and practice of the Army and Navy Departments, to seniority of service, the longer service of Major Laucheimer would. other things being equal, give him precedence in rank. And I am of opinion, as both officers were, in fact, promoted, that the earlier commission and rank of Major Laucheimer and his seniority of service entitle him to precedence in rank.

But this opinion is not based upon express statutory provisions, nor given with a familiarty with the practice of your department in such matters; and if, under such rules and practice, a contrary conclusion would be reached from the three facts above referred to as the basis of this opinion, then such conclusion should govern.

And I may add that, in this case-whether in consonance with this opinion, or otherwise-and in other cases where the matter is not regulated by statute, you may yourself determine them, with the force and effect of law, by virtue of your general authority, under the President, to make rules and regulations for the government of the Navy. Usually, of course, this is better done by general rules than by decisions in particular cases; but it may be done either way.

I return, as requested, the inclosures transmitted with your note.

Respectfully,

The SECRETARY OF THE NAVY.

JOHN W. GRIGGS.

ARMY-TRANSPORTATION BLANKS-FRAUD.

Where blank transportation requests were delivered to an officer of the United States Army in such form as to require but the filling of the blanks and his signature to make them Government orders upon carriers for the transportation therein indicated, and where these blanks were issued fraudulently to persons not entitled to them, and railroad companies furnished transportation upon the orders, in the absence of negligence and bad faith on the part of the carriers, the United States is liable for the transportation thus furnished.

DEPARTMENT OF JUSTICE,

May 26, 1900.

SIR: In reply to your request indorsed May 18, 1900, on the letter of the Comptroller of the Treasury, dated May 15, 1900, I have the honor to hand you my official opinion upon the facts there stated.

The case thus made is, in substance, this: In accordance with a custom, of long standing in the War Department, to facilitate the procuring of necessary railroad and other transportation for persons connected with the Army, and for the convenience of the Government, certain blank "transportation requests," printed on the usual blank forms furnished by that Department, with the lithographed signature of the Quartermaster-General, were, in regular course, delivered to one who was then a captain in the Army. These, as was the usual custom, were in blank as to the person for whom, and the transportation to be furnished, and required but the filling of these blanks and the date and the countersigning of the officer to whom they were delivered to make them available to procure the transportation thus called for. Very large numbers of these are constantly in the hands of very many officers for such use, and, in accordance with the custom, and as understood by both the Government and common carriers, upon presentation of these "requests," thus filled up and countersigned, the carriers issued tickets for the transportation thus called for. They were, in short, Government orders upon the carriers for the transportation thus indicated, and, by general practice, were honored by the carriers, and the transportation paid for by the Government. It was a convenient mode adopted for the conven19395-VOL 23-02-11

ience of the Government, instead of paying cash in advance, in each instance.

Some time since the officer to whom the "requests" here in question were delivered was dismissed, but the unused requests in his possession were not taken up, but he still retained them, and after his dismissal, and when he had no longer any right to do so, fraudulently filled up and countersigned some of them in the regular and usual form and delivered them to persons not entitled to transportation at Government expense, and not upon Government account or for Government service, and those persons presented them and received the transportation thus called for, and the railroad companies furnishing such transportation now present the bills therefor for payment by the United States. There was nothing to distinguish these "requests" from those properly issued in the Government service, nor is there any question of negligence or want of good faith on the part of the railroad companies in honoring these orders for transportation. And the questions submitted are whether the United States is liable for this transportation, and whether the accounting officers of the Treasury should pay the bills therefor.

Under these circumstances, and with this absence of negligence and bad faith on the part of those furnishing the transportation upon these orders, I have no doubt that the United States is legally and equitably liable to pay for this transportation and as if these orders had been properly issued in the Government service. Several reasons for this might be stated, but one will suffice. It is a general rule, as well of law as of equity and good sense, that when one of the innocent parties must suffer from the wrongful act of a third person, the loss must be borne by him who placed it in the power of such third person to do the act which occasions it.

Here the Government placed in the hands of one of its officers all the means and the appropriate and authorized means for obtaining this transportation, and gave to him discretion as to when and the persons for whom they should be used from time to time, and by its express order and by its practice invited and asked carriers to furnish the trans