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and McCalla were dated August 10, 1898, and each was to take rank from that date. That to McCalla reads:
“I do advance him six numbers and appoint him a captain in the Navy, to restore him to his original place in the Navy list, for eminent and conspicuous conduct in battle, from August 10, 1898.”
That to Lieutenant-Commander Pillsbury, contirmed by the Senate, reads:
“To be a commander from the 10th day of August, 1898, vice Commander Bowman H. McCalla, advanced and promoted."
That to Lieutenant Rittenhouse, also confirmed, dated November 25, 1898, reads:
"To be a lieutenant-commander in the Navy from the 10th day of August, 1898, vice Lieutenant-Commander John E. Pillsbury, promoted.”
Permanent commissions were issued to those officers confirmed by the Senate
The Comptroller then continues his statement of facts:
“The officers next in line of promotion below Lieutenant Rittenhouse were nominated, and, on same date, confirmed for the advancements in the several grades below caused by this promotion, and received ad interim commissions prior to their confirmations."
What, then, was the official status of these officers after such attempted promotion? Various answers may be suggested.
Revised Statutes, section 1506, as amended by the act of June 17, 1878 (20 Stat., 14), provides that
“Any officer of the Navy may, by and with the advice and consent of the Senate, be advanced not exceeding thirty numbers in rank, for eminent and conspicuous conduct in battle, or extraordinary heroism; and the rank of officers shall not be changed except in accordance with the provisions of existing law, and by and with the advice and consent of the Senate."
The act above referred to (20 Stat., 141) reenacted original section 1506 of the Revised Statutes, and added the last clause as above quoted.
The effect of these proposed advancements and promotions is the principal matter submitted, and the question arises directly as to the pay of these confirmed officers.
It seems to me clear that the advancement in numbers and promotion of Sampson, Philip, and McCalla, by the President alone, did not create vacancies in their offices, as such advancement and promotion can be only with the advice and consent of the Senate. This was decided by the Comptroller of the Treasury, and I think correctly, in Rear-Admiral Sampson's case (6 Comp. Dec., 7). Besides the reasons there stated, it may be remarked that the last clause of amended section 1506, above quoted, forbids that the rank of any officer be changed, except with the advice and consent of the Senate. Therefore, as the advancements of Sampson, Philip, and McCalla would be to change their respective grades and ranks, they could not be made by the President alone, and did not create any vacancies.
The Constitution, Article II, section 2, provides that
" The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session."
But this does not confer upon the President the power to create such vacancies. Such power as he has to create a Vacancy, by the removal of an incumbent, is derived from his general power of removal, incident to his power to appoint, or from acts of Congress. And, I bave no doubt that, except as restricted by the Constitution or act of Congress, the President has ample power of removal, as incident to his power to appoint officers. (Er parte llerman, 13 Pet., 259; JElrath v. United States, 102 U. S., 426; Blake v. United States, 103 U. S., 227.)
That he may remove an officer by the mere appointment of another officer in his place is settled by the two cases last cited. Yet, the exercise of this power may be regulated or restricted by the Constitution and, so far, at least, as this case is concerned, by Congress. And this has been done here by both-by the Constitution, which requires the consent of the Senate to the appointment—the only thing which, in this case, could operate as a removal from office, or to create a vacancy-and by the statute, which forbids such a change of rank by the President alone, as would be this advancement of these officers.
There was, then, at the time, no vacancy thus created in the office of commander to which Lieutenant-Commander Pillsbury could be promoted or appointed, as the intended advancement of McCalla did not create one; and if the promotion of Pillsbury was ineffectual, then his intended promotion created no vacancy which Rittenhouse could fill, and so on down the line, as far as such promotions went.
Revised Statutes, section 1363, fixes the maximum number of officers in the Navy; and at the time of these promotions, the number of each of the grades we are now considering was full, so that no new appointment, either original, or by promotion, could be made in those grades without either increasing the number allowed by law or removing some other officer.
Under these circumstances the appointment of LieutenantCommander Pillsbury, confirmed by the Senate, to be a commander in the place of McCalla, must either, first, increase the number of commanders beyond that allowed by law, or, second, operate to remove Commander McCalla, or, third, operate to contirm McCalla's appointment as captain, or, fourth, be ineffectual and void. Any other result would seem out of the question.
First. Has the President power, by and with the advice of the Senate, to increase the number of commanders in the
beyond the number expressly fixed and limited by Congress? I think not. While the Constitution gives to the President the power, with the advice and consent of the Senate, to appoint all officers, it does not confer the power to create such offices as these, nor to increase their number. He may appoint such officers as are created by the Constitution or by law, but I think there can be no doubt of the power of Congress to fix and limit the number of such officers as these, and that such action is binding upon both the Executive and Senate, and can be changed by Congress alone. This view has also legislative support. Revised Statutes, section 1363, fixes and limits the number of officers in the active list of the Navy, and the next section provides that
“The provisions of the foregoing section shall not have the effect to vacate the commission of any lieutenant-commander, lieutenant, master, or ensign, appointed according to law, in excess of the respective number therein fixed," thus, by a familiar rule of construction, implying that the commissions of other officers, in excess of the number fixed, might be thereby vacated. I do not think the appointment of Pillsbury was valid, if it increased the number of commanders beyond that allowed by law.
Second. Did the confirmed appointment of LieutenantCommander Pillsbury to be a commander, "vice McCalla, advanced and promoted," operate to remove the latter from his office of commander, and therefore from the service? If so, it was, no doubt, unintentional on the part of both the President and Senate, and simply by operation of the doctrine held in McElrath v. United States and Blake v. United States, supri.
In each of these cases it was supposed, as it was here, when the successor was appointed, that there was a vacancy which might be thus filled; and in each case, it might have been well held that there was such. But each case proceeds upon the idea that there was no vacancy, but the former incumbent still held that office, and upon this theory it was held that the appointment of another officer in the place of the former incumbent—in one case, stated as “dismissed,” and in the other as “resigned”— operated, ex proprio vigore, to remove the former officer from the office and from the service. Did it do so here? It would seem the very irony of law that an act intended for the promotion and honor of an officer should, by operation of law, be the exact opposite, and effect his removal and disgrace. I think I am justified in resorting to any possible construction which will prevent such an injustice to a gallant and worthy officer, especially when it was, obviously, not intended by either the President or the Senate.
It must be assumed that, in making these appointments, both the President and the Senate intended to act strictly in accordance with the law; and further, that nothing was intended by either other than the promotion of officers deemed worthy of promotion.
That the appointment of Pillsbury in the place of McCalla was not intended to be the removal of the latter, but was in consequence of his supposed promotion, is made entirely certain by Pillsbury's nomination, by his confirmation, and by his commission, each of which states it to be made “vice Commander Bowman H. McCalla, advanced and promoted ;” and to give it the opposite effect of removing that officer would be entirely unwarranted, especially when, consistently with legal rules, it can be given full effect as it is expressed and intended.
Third. Did the confirmation by the Senate of Lieut. Commander John E. Pillsbury, “to be a commander from the 10th day of August, 1898, vice Commander Bowman H. McCalla, advanced and promoted," operate as the advice and consent of the Senate to the advancement and promotion therein stated? If there was any such promotion as the Senate asserted, it was because the Senate either had consented, or did thereby consent to it. And the confirmation of an officer nominated for promotion may be as well made by the appointment and confirmation of his successor, as in any other way, provided it shows the assent of the Senate to such promotion.
No particular form, set phrase, or language is required by which the Senate shows its assent to a Presidential appointment. It may be shown by resolution, hy vira roce vote on oral motion adopted and recorded, or by any other mode which shows the assent of that body. It may be shown by an act which can not be or do that which it purports and undertakes to be or do, except by such assent. The appointment of Pillsbury could not be what it purported, expressed itself and undertook to be, except by the consent of the Senate, in some sufficient form, to the advancement and promotion of McCalla. For it purported, and was so expressed, and undertook, to make Pillsbury a commander in the place of McCalla, “advanced and promoted, "--not removed, but promoted. It could not do this, unless McCalla was promoted; and inasmuch as such promotion depended only upon the assent of the Senate it must be