a defined community. No one ever supposed that "city, town, or village" was merely a popular appellation given to a certain vaguely defined territory. The words connoted, above all, local government, with legislative and executive functions. (Dillon on Municipal Corporations, 5th ed., sec 14, 15, et seq.; Cooley on Constitutional Limitations, 7th ed., pp. 261, 262, et seq.; Goodnow Principles of Administrative Law, pp. 206, 219, et seq.)

That this is the meaning of the word "place" in the act of 1864 is brought out clearly in the proviso to section 41 thereof, to the effect that nothing in the act shall be construed to prevent the shares in any banking association held by any person or body corporate "from being included in the valuation of the personal property of such person or corporation in the assessment of taxes imposed by or under State authority at the place where such bank is located, and not elsewhere."

The word "place" is evidently used here as meaning a community where personal property is valued for taxation, and evidently such a valuation can be, and is only, made in some political subdivision. A mere locality has, as such, no special valuation of personal property for taxation.

This reasoning applies a fortiori to the word “city.” In all the history of England and of this country this word has always primarily indicated government, not territory, and a citizen was one who claimed the right to participate in this local government. The "city" of New York, or the "city" of Chicago, includes all that territory in which the laws and ordinances of the city run, and its power of local taxation is exercised, and, except in loose, popular usage, can include no less. The inhabitants of Logan Square live in the "city" of Chicago, are subject to its laws and taxing power, and are citizens thereof. It is the population of the "city" of Chicago, as thus defined, which must be taken as a basis for the capitalization of any banking association established within its corporate limits.

The act of 1864 could not be safely administered under any other construction, for it would be impossible to de

termine the population of a "city, town, or village," unless its boundaries as a political community be taken as a base. The act of 1864 must have had in mind the United States Census, which could not be resorted to if the loose definition of a "city, town, or village " be taken.

Moreover, the loose construction of these words leaves the administration of the act in an important feature to the uncontrolled discretion of the administrative officers. Once the test of a political community is abandoned and there is no clear principle upon which to define a "city, town, or village," the whole question would finally come down to the mere opinion of the administrative officer that a bank with not less than $50,000 capital was, or was not, proper or necessary in a particular locality.

It is true that the act has received a different construction by the Solicitors of the Treasury, and that this construction has been acted upon by your department since 1901. This departmental construction is entitled to considerable weight, and might be decisive if the law were ambiguous, but as, in my opinion, the law is entirely clear, the departmental construction, while entitled to consideration, is not controlling and, in this case, should not be followed. (Swift Co. v. U. S. 105 U. S. 691, 695; U. S. v. Graham, 110 U. S. 219, 221; Studebaker v. Perry, 184 U. S. 258, 269.) It is also true that the construction I have adopted may work an inconvenience in a very few, peculiar cases, but, in my judgment, the remedy, if any remedy be needed, should be left to Congress, where the matter properly belongs.

Very respectfully,

J. C. McREYNOLDS.

TO THE SECRETARY OF THE TREASURY.

PROMOTION OF ARMY OFFICERS.

The act of October 1, 1890 (26 Stat. 562), regulating the promotion of certain officers of the Army, does not make it obligatory upon the President to promote to a vacancy existing in the grade of lieutenant colonel the senior officer in the next lower grade, if, in his opinion, the record of the officer has been such as to indicate that he is disqualified for promotion.

DEPARTMENT OF JUSTICE,

June 23, 1913.

SIR: I have the honor to reply to the request in your letter of June 5 for my opinion concerning the effect of the act of Congress of October 1, 1890, upon your right to make nominations for certain positions in the Army. It appears that a vacancy exists in the grade of lieutenant colonel in the Quartermaster Corps, and that you are considering how it should be filled.

The following queries, presented by the honorable Secretary of War, state the points for consideration:

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"(1) Whether the provision of the act of October 1, 1890, that promotions in the Army below the rank of brigadier general shall, subject to the examination required therein (i. e., examination of all officers of the Army below the rank of major '), be made according to seniority in the next lower grade,' should be construed as mandatory upon the President to appoint the senior officer in the grade of major to the vacancy, if, in his opinion, the record of the officer has been such as to indicate that he is disqualified for promotion, but under the law can not be eliminated, either through the agency of a retiring. board or a court-martial.

"(2) Whether, if the act of October 1, 1890, be regarded as intended to require the President to appoint the senior officer in the next lower grade, the statute if so construed would not be an unauthorized encroachment upon the appointing power of the President and should not for that reason be treated as advisory or recommendatory in character."

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The act of October 1, 1890, c 1241 (26 Stat. 562), which is referred to in the above questions, provides:

"Be it enacted, etc., That hereafter promotion to every grade in the Army below the rank of brigadier general, throughout each arm, corps, or department of the service. shall, subject to the examination hereinafter provided for. be made according to seniority in the next lower grade of that arm, corps, or department: Provided, That in the line of the Army all officers now above the grade of second lieutenant shall, subject to such examination, be entitled to promotion in accordance with existing laws and regulations."

Section 3 of that act provides, in part, as follows:

"SEC. 3. That the President be, and he is hereby, authorized to prescribe a system of examination of all officers of the Army below the rank of major to determine their fitness for promotion, such an examination to be conducted at such times anterior to the accruing of the right to promotion as may be best for the interests of the service: Provided, That the President may waive the examination for promotion to any grade in the case of any officer who in pursuance of existing law has passed a satisfactory examination for such grade prior to the passage of this act: And provided, That if any officer fails to pass a satisfactory examination and is reported unfit for promotion, the officer next below him in rank, having passed said examination shall receive the promotion: And provided, That should the officer fail in his physical examination and be found incapacitated for service by reason of physical disability contracted in line of duty he shall be retired with the rank to which his seniority entitled him to be promoted; *

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Section 2 of Article II of the Constitution, dealing with the power of the President, provides that "he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other Public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think

proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

This provision of the Constitution divides inferior officers into two classes according to the source from which the power of appointment is derived. When Congress creates an office, but does not vest the power of appointment thereto in any of the persons specified, then the Constitution operates proprio vigore and immediately casts upon the President, by and with the advice and conset of the Senate, the duty of appointing thereto. Where, on the other hand, Congress itself designates the person or persons who are to appoint to a given office created by it, there the power and the duty of appointment comes immediately from Congress, and only mediately from the Constitution.

Congress, by the act of February 2, 1901, sec. 16 (31 Stat. 751), provided for the office of lieutenant colonel in the Quartermaster Corps, but said nothing as to the power of appointment thereto. The provisions of the Constitution, therefore, operate directly upon this office, and, without the intervention of Congress, obliges the President to nominate, and by and with the advice and consent of the Senate, to appoint thereto.

In this opinion it is only necessary to consider appointments the duty to make which is directly imposed on the President by the Constitution itself; no discussion of the other class will be entered upon. That a difference exists between the two is intimated in United States v. Perkins (116 U. S. 483, 485).

I entertain no doubt that the power of appointment of officers, the duty to appoint whom devolves directly on the President and Senate by virtue of the Constitution itself, is one involving a discretion not to be entirely controlled by Congress. This power is from a source above Congress, namely, the Constitution, and can not be destroyed by the inferior power.

In Marbury v. Madison (1 Cranch, 137, 155), Chief Justice Marshall, after quoting the clauses of the Constitution on the subject, said: