the command reached minimum strength, although it did not have that strength on the date of his appointment or on the date from which he was to take rank under it?

(5) Does the act require, in the case of a person appointed. after June 20, 1863, that the command should have continuously maintained minimum strength from the date on which recognition commences up to the date on which the person was promoted to a higher grade, was discharged from service, died, or was otherwise disposed of as he would have been if he had actually been mustered into service as of the grade in question? Or can a person be continuously recognized from the date on which the command attained minimum strength, notwithstanding the fact that such strength may not have been maintained continuously? Or must it be held in such cases that recognition can be extended only for the period or periods during which the command was above minimum strength?

(6) Does the condition as to the existence of a vacancy, imposed by the second proviso of the act, require the existence of a vacancy at the date of issue of an appointment or commission, or does it require the existence of a vacancy at the date fixed by the first proviso of the act?

The act of February 24, 1897 (29 Stat., 593), the construction of which is requested, is as follows:

"That any person who was duly appointed or commissioned to be an officer of the volunteer service during the war of the rebellion, and who was subject to the mustering regulations at the time applied to members of the volunteer service shall be held and considered to have been mustered into the service of the United States in the grade named in his appointment or commission from the date from which he was to take rank under and by the terms of his said appointment or commission, whether the same was actually received by him or not, and shall be entitled to pay, emoluments, and pension as if actually mustered at that date: Provided, That at the date from which he was to take rank by the terms of his said appointment or commission there was a vacancy to which he could be so appointed or commissioned, and his command had either been recruited to the minimum number required by law and the regulations of

the War Department, or had been assigned to duty in the field, and that he was actually performing the duties of the grade to which he was so appointed or commissioned; or if not so performing such duties, then he shall be held and considered to have been mustered into service and to be entitled to the benefits of such muster from such time after the date of rank given in his commission as he may have actually entered upon such duties: Provided further, That any person held as a prisoner of war, or who may have been absent by reason of wounds, or in hospital by reason of disability received in the service in the line of duty, at the date of issue of his appointment or commission, if a vacancy existed for him in the grade to which so appointed or commissioned, shall be entitled to all the benefits to which he would have been entitled under this act if he had been actually performing the duties of the grade to which he was appointed or commissioned at said date: Provided further, That this act shall be construed to apply only in those cases where the commission bears date prior to June twentieth, eighteen hundred and sixty-three, or after that date when the commands of the persons appointed or commissioned were not below the minimum number required by then existing laws and regulations: And provided further, That the pay and allowances actually received for the period covered by the recognition extended under this act shall be deducted from the sums otherwise to be paid thereunder.

"SEC. 2. That the heirs or legal representatives of any person whose muster into service shall be recognized and established under the terms of this act shall be entitled to receive the arrears of pay and emoluments due, and the pension, if any, authorized by law, for the grade to which recognition shall be so extended.

"SEC. 3. That the pay and allowances of any rank or grade paid to and received by any military or naval officer in good faith for services actually performed by such officer in such rank or grade during the war of the rebellion, other than as directed in the fourth proviso of the first section of this act, shall not be charged to or recovered back from such officer because of any defect in the title of such officer

to the office, rank, or grade in which such services were so actually performed.

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"SEC. 4. That all acts and parts of acts inconsistent with the provisions of this act be, and the same are hereby, repealed."

By its express terms, this act applies only to officers whose appointments or commissions are of a date earlier than June 20, 1863, and to cases of a later date "when the commands of the persons so appointed or commissioned were not below the minimum number required by then existing laws and regulations." The cases of dates earlier than June 20, 1863, will be first considered.

It will be observed at the outset, that the sole purpose of the first section of the act is to provide, in the cases named, for a constructive muster into the service, to take the place, and be in the stead of the actual formal muster generally required by law and regulations, and, when the law provides, as this one does, that a person "shall be held and considered to have been mustered into the service of the United States in the grade named in his appointment or commission," from a certain date, such person, upon the happening of the contingencies named, is, after said act, to be considered as mustered into such service in that grade, to all intents and purposes, and with all the incidents of such muster, and to have been as much an officer in that grade as though actually and formally mustered in. The very object of the section is to make the facts stated the equivalent of a formal muster in, for the purpose of the recognition and benefits provided by the act. It is not that he is to be considered as mustered in for some purposes, but not for others. The language is general that he "shall be held and considered to have been mustered into the service of the United States, in the grade. named," and this does not permit the interpretation that he is thus mustered only for some purposes. Congress was quite aware of the effects and incidents of a muster into the service of an officer in a certain grade; and if it had not intended these effects and incidents to follow the constructive muster it thus provided for, doubtless it would have made other provision. The importance of this conclusion

will be seen more especially as indicating the answer to some of the questions submitted, as to the permanency of the recognition given under this section.

What, then, are the conditions that must concur in order to the constructive muster provided in this section?

Simply those named in the section, and those alone; for the act deals only with the particular cases which it names. Whatever there is in other cases making an equivalent of or substitute for actual muster, fixing the status of an officer before or after muster, prescribing the effects or incidents. of such status or its continuance, is so by virtue of other laws, regulations, or practice; and with such cases this act does not deal, but, as already said, deals only with the particular cases therein named.

Most of these requirements are plain and need no explanation, and the others are fairly certain.

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First. The first requirement of the first proviso is that "at the date from which he was to take rank * there was a vacancy to which he could be so appointed." Two questions are suggested as to this: First, if there was no such vacancy at the date named, but there was one shortly, or at a considerable time thereafter, may the officer be considered as mustered from the date of such vacancy? And, second, is the vacancy here mentioned a legal vacancy or a numerical one-the latter meaning where the number of officers allowed by law to a command, is not full.

So far as any correct interpretation of the statue is concerned, the first question must be answered in the negative. As is already said, the act makes provision for only the particular cases it names, and it has made no provision for the case of a vacancy occurring after the date from which the officer was to take rank; and, by a familiar rule of interpretation, where a statute states the facts or conditions upon which another thing is to depend, this is exclusive of other facts or conditions. And this conclusion receives much support, if it be needed, from the fact that, when Congress intended to provide for a case where the specified condition. first existed at a date later than that named, it did so expressly, as in the case, in the same proviso, of an officer

entering upon the performance of his duties some time after the date from which he was to take rank. Had Congress intended the same thing in the same proviso in relation to a vacancy, doubtless it would have said so in that case also.

But the proviso of the act of June 3, 1884 (23 Stat., 34), as to a vacancy, is, as to this question, similar to the act of February 24, 1897; and I am informed that, under that act, it has been the practice in your Department to recognize an officer as such from the date of a vacancy occurring after his commission, although there was no vacancy for him at the date of his commission. While I do not think this is a correct interpretation of that act, yet if such practice existed it must have been known and tacitly assented to by Congress. If such construction were permissible under the earlier act, it might be also under the present act; and, as stability of practice in that which affects the status or grade of army officers is desirable, I am not prepared to say that such practice, if it exists, should be discontinued. Whether this should be done or not, is left to your discretion. But, unless controlled by some existing practice, I do not think that, as respects this requirement, an officer can be considered as mustered unless there was a vacancy for him at the date from which, by the terms of his appointment, he was to take rank.

As to the second question above, the vacancy mentioned is a legal vacancy-one "to which he could be appointed or commissioned" in acordance with the then-existing law and regulations, one which might then be filled consistently with existing law and regulations.

Second. Then there is the requirement that the command to which he was appointed, had either been recruited to the minimum number or assigned to duty in the field. This requires no comment further than that the time here referred to is also the date from which the officer is to take rank. Third. And "that he was actually performing the duties of the grade to which he was so appointed or commissioned.” This reference, in the past tense, refers, as do the previous ones, to the date from which he was to take rank, and the requirement is, that at that date, "he was actually

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