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taken that that body assented to the only thing which could make its act effective. To say otherwise, is to impute to the Senate an ignorance of the fact that it had not confirmed McCalla, or else an intention to appoint an officer to fill a vacancy which it knew did not exist, and which it knew he could not fill or occupy, and to assert that a vacancy existed, which it knew did not exist, neither of which is permissible.

And the same thing would be true also as to the appointment of Lieutenant Rittenhouse, to be a lieutenant-commander, in the place of Pillsbury, promoted; and so on, down the line, as each one stepped into the shoes of the one promoted. In no case would the fact stated in the Senate confirmation be true, except that the Senate did advise and consent to the only thing which could make it true.

The President bad already nominated McCalla to be a captain, and all that was necessary to make him such and to cause a vacancy in his office of commander, was that the Senate consent thereto. And when the Senate confirmed another officer, expressly asserting that it was to fill the place of McCalla, promoted, and which promotion could not be without its consent, it necessarily, and thereby asserted its consent to his promotion. In contirming Pillsbury it confirmed everything necessary to that contirmation. As the Senate could not increase the number of commanders, its confirmation of Pillsbury to be a commander necessarily either removed McCalla, or promoted him, and the Senate has said which it was; it was in the place of McCalla, advanced and promoted.

I am, therefore, of opinion that Commander McCalla was duly advanced, promoted, and contirmed to be a captain in the Navy, and that this created a vacancy in his former office of commander, to which Lieutenant-Commander Pillsbury might be and was duly appointed and confirmed.

This would also make regular and in due course the appointment and contirmation of Lieutenant Rittenhouse to be a lieutenant-commander, vice Pillsbury, promoted, and also the successive appointments of officers below him.

Revised Statutes, sections 1364, 1506, and 1507, authorize the advancement of officers of the Navy to higher grades, for eminent and conspicuous conduct in battle or extraordinary heroism, even though in excess of the number in such grade, as fixed by statute; and section 1364 provides that

"The provisions of the foregoing section (fixing the number of officers of the various grades) 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 herein fixed; nor to preclude the advancement of any officer to a higher grade, for distinguished conduct in battle, or for extraordinary heroism, under the provisions of sections fifteen hundred and six and fifteen hundred and eight.'

But, in this case, none of the officers below McCalla were advanced under either of those sections, but they were promoted in turn to fill vacancies created by McCalla's advancement and the promotion of those below him. Whatever effect either of these sections might have had in validating the appointments of Lieutenant-Commander Rittenhouse and those below him, in case there were no vacancies to be thus filled, and treating such appointments as in excess of the number in each grade fixed by law, it would seem that, since the act of August 5, 1882 (22 Stat., 28+), no such promotions as those last mentioned could be made in excess of the number fixed by law. That act provides, among other things (p. 286), that,

“Hereafter, only one-half of the vacancies in the various grades of the line of the Navy shall be filled by promotion until such grades shall be reduced to the following numbers, namely: Rear-admirals, six; commodores, ten; captains, forty-five; commanders, eighty-five; lieutenant-commanders, seventy-four; lieutenants, two hundred and fifty; masters, seventy-five; ensigns, seventy-tive; and thereafter promotions to all vacancies shall be made but not to increase either of said grades above the numbers aforesaid."

Under this act, it would appear that the promotions of Lieutenant-Commander Rittenhouse and those below him could not be sustained if they increased the number of officers of these grades beyond the number fixed by that act; and can be sustained only upon the fact that there were vacancies to be thus filled, as already stated.

As there were no vacancies on August 10, 1898, when these officers took rank, according to their commissions, the act of June 2, 1874 (18 Stat., 191), does not apply so as to entitle them to pay in the higher grades from the time they took rank respectively. There were no such vacancies until December 14, 1898, when the Senate confirmed the appointment of Pillsbury to be a commander. I return the papers transmitted with your note. Respectfully,




In the hearing of cases arising under the Chinese exclusion laws, the

duties of a United States commissioner are judicial rather than ministerial. Consequently the Treasury Department has no authority to issue instructions to United States commissioners as officers charged with the enforcement of these laws.


March 7, 1900. SIR: I am in receipt of your letter of March 6, with which you enclose copy of a letter dated March 5 from Chinese Inspector Ralph Izard, concerning the conclusion of United States Commissioner Frederick C. Paddock, of Malone, N. Y., that the latter has no authority to try certain Chinese cases now pending before him without an order of the district court to that effect.

It seems that under section 21 of the act of May 28, 1896, under a certain ruling of the Comptroller of the Treasury thereupon, and under the last form of "Instructions to United States commissioners" issued by the Treasury Departinent, Chinese cases are held to be civil cases, and in civil cases the commissioner's jurisdiction depends upon an order of court. It seems also that the court will issue no instructions, because, apparently, Chinese cases have always been regarded and treated by the courts as of a quasi-criminal character; and therefore, unless the Comptroller changes his decision, the commissioner is of opinion that he has no authority to try these cases. The alternative is that the twenty-odd Chinese whose cases are pending may be discharged on the adjourned date of the hearing, namely, March 13, and that this course will entail the expense of rearresting them and taking them to Plattsburg for trial.

C'pon these facts you request to be informed whether in my opinion it is within the province of the Treasury Department to take action in the premises which may be made the basis of instructions to officers charged with the enforcement of the Chinese exclusion laws.

In reply, I have the honor to state that the Treasury Department, through its subordinate officials, is charged with the enforcement of these laws, but that a United States commissioner appears to me, under the language of the acts giving jurisdiction to a commissioner in such cases, to be acting as a judicial rather than a ministerial officer. The case of Todd v. United States (158 U. S., 278) holds that a commissioner is not a judge of a court of the United States, but simply an officer of the circuit court, pointing out that technically the commissioner is an examining magistrate and not an examining court. The opinion in United States V. Allred (155 U. S., 591) comes to a similar conclusion, and holds that United States commissioners in their administrative action are subject to the supervision and control of the court appointing them. But both these opinions and other opinions cited in the argument for the l'nited States contained in the report of the Todd case recognize the judicial character of many of a commissioner's duties and functions, and the force of the decisions is only that a commissioner is not in all respects a separate judicial officer over whom a court has no control. There is nothing in these opinions, or in any opinions of the courts of which I am aware, supporting the view that United States commissioners are subject generally to instructions from other sources than the courts by which they are appointed. The “Instructions” referred to appear to be no more than an abstract of statutory provisions and rulings of the Comptroller of the Treasury thereupon.



I have referred to these cases in order to show that while a commissioner performs duties of a double nature, some of them administrative or ministerial, and some of them judicial, there can be no doubt that in many important respects he is a judicial officer, and I am of the opinion that in the hearing of Chinese cases his duties are to be regarded as judicial rather than as performed in the administrative enforcement of the law. Consequently, I am not aware of any authority which may be made the basis of an executive instruction to a commissioner as an officer charged with the enforcement of the Chinese exclusion laws; although by this view I do not seek to impose any restriction upon your administrative discretion, because it may well be considered that you should determine this point of discretion independently, and may properly keep in mind the somewhat undefined status of a commissioner in performing different duties, and the relations which such officers have customarily borne to the administration of many laws by or through the Treasury Department.

If, however, your own conclusion is that instructions to Commissioner Paddock are not in order, and that the question may properly be referred again to the Comptroller of the Treasury for the purpose of obtaining, if possible, a revision of his decision, the alternative in the present instance then is that the Chinese in question should, in case they are discharged by Commissioner Paddock, be rearrested and taken to Plattsburg for trial.

You are, of course, aware that the law provides that such Chinese cases may be heard by a district court as well as by a commissioner, and if United States commissioners generally decline, because of the foregoing facts, to hear such cases, the reason for the declination would not exist in the case of hearings before a district judge. Very respectfully,


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