I further certify that the records of this office show that said Walker reported with his regiment for duty on April 26, 1898, and actually served with such as 2d lieutenant from that date until the date of his muster in (May 12, 1898), and that he received pay from the State of West Virginia for such services as 2d lieutenant (mounted).

Major John Baker White, in an affidavit executed February 15, 1900, states as follows:

That said Walker, fearing that he would not receive a commission in the 1st West Virginia Volunteer Infantry, by reason of there being no such office as battalion quartermaster in the United States Army, and being anxious to serve his country in some capacity, did cause his name to be enrolled as a private in Company B, 1st West Virginia Volunteer Infantry.

The muster-out roll of Company E shows soldier enrolled as a private and appointed a 2d lieutenant April 29, 1898, and mustered out as such.

Notwithstanding the findings of the War Department upon all the other evidence in the case it is concluded that said Walker joined for duty and was enrolled as a private in Company B, 1st Regiment, West Virginia Infantry, April 26, 1898, and that he was commissioned as 2d lieutenant in Company E, 1st Regiment, West Virginia Infantry, April 29, 1898. He is therefore entitled to the pay of a private from April 26 to April 28, 1898, inclusive, and to the pay of a 2d lieutenant from April 29 to May 11, 1898, inclusive, which is now allowed. (See decision of the Comptroller in case of Charles D. Forrer, July 31, 1900.)

The officer does not appear to have exercised the command of captain, if at all, except by virtue of being senior officer present for duty with the company and in command by virtue of paragraph 253, Army Regulations of 1895, which provides:

In the absence of its captain the command of the company devolves upon the subaltern next in rank who is serving with it, unless otherwise specially directed.

He does not claim and there is no record to show that he exercised the higher command, if at all, by any other authority or order than that conferred by paragraph 253 of the Army Regulations, supra, as the senior officer present for duty with the company.

Section 7 of the act of April 26, 1898 (30 Stat., 365), providing pay for those officers who exercise a command above that pertaining to their grades reads as follows:

That in time of war every officer serving with troops operating against an enemy who shall exercise, under assignments in orders issued by competent authority, a command above that pertaining to his grade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised.

To hold that this act allows pay to an officer who exercises a command above that pertaining to his grade under paragraph 253 of the Army Regulations, supra, by virtue of being the senior officer present for duty with his company, does violence to both the language and spirit of the act and the conditions and limitations therein specified. If such be its proper construction, the clause limiting this increased pay to the officers exercising a higher command than that held by them under assignment in orders issued by competent authority is utterly without meaning, force, or effect.

It is fair to presume that Congress in the passage of a law of this importance, in fact of any law, used the English language with a fair degree of accuracy. If it had intended to pay the officer for exercising a higher command than that held by him, under the terms and provisions of the regulations quoted or any other Army regulation, it would have been a very easy matter to have so stated.

If this had been the intention of Congress its intention would have been perfectly manifest by entirely omitting from the act the language requiring the assignm to the higher command to be by assignment in orders issued by proper authority It is perfectly clear to my mind that Congress intended to attach a substatta meaning to these restrictive words, in fact the most restrictive clause in the entire act, and that its meaning does not appear to be of great difficulty to arrive at. I is that when an officer is absent and the officer having authority to desig another officer to temporarily fill his position determines that the absence is of zurh a character as justifies an official filling of the position so temporarily vacant, and does so fill it by ordering some other officer to fill it, then the requirements of this clause of the law have been fulfilled.

It seems to me that the correct rule is laid down in this matter in General Orders, No. 86, General Orders and Circulars, Adjutant General's Office, and Circular, No 18, Adjutant General's Office. It is said in the latter circular:

For the purpose of restricting assignments to command under this section to "competent authority," it is decided that such authority can be exercised only by the Secretary of War or by the commanding general of an army operating against an enemy."

(Decision Sec. War, June 10, 1898-85003, A. G. 0.)

It is said in General Orders, No. 86:

To entitle an officer to the pay of a grade above that actually held by him, the assignment in orders, under the clause cited must be by the written order of the commanding general in the field or the Secretary of War, and no pay or allowances of a higher grade than that actually held by an officer will be paid under this provision except when a certified copy, in duplicate, of such order with statement of service is filed with the paymaster.

Without these authorities it would appear that an officer assuming temporary command under a regulation is not the assuming of command "under assignment in orders issued by competent authority."

No order having been made assigning this lieutenant to the command of the company for any period by any competent authority under the clause of the act mentioned, he is not entitled to pay for exercising the command of captain, and as he has been paid in full for all other periods wherein it is shown that he exercised a command above that pertaining to his grade in orders issued by competent authority, the action of the Auditor as to this item is affirmed.

Any decision of this office holding that an officer not assigned as set forth to a command above that which he holds is entitled to pay and allowances of such higher command is hereby overruled.

Upon revision of the above-described account I find and certify the following difference:

Due claimant from the United States:

Pay as private from April 26, 1898, to April 28, 1898, inclusive, at $15.00 per month...

Pay as 2d lieutenant from April 29 to 30, 1898, inclusive, at $1,400 per

$1.56

annum

Pay as 2d lieutenant for May, 1898, $116.67, less $73.90 paid.
Short paid from February 1 to February 4, 1899

7.77

42.77

.45

Total..

Appropriation: "Pay, etc., of the Army, January 1, 1899."
To be paid to Philip G. Walker, Charleston, W. Va.

52.55

R. J. TRACEWELL,

Comptroller.

V. In accordance with section 1892, Revised Statutes, and section 12, act of April 22, 1298, volunteer officers are entitled when promoted by seniority to pay from date of vacancy in next higher grade.

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,
Washington, March 12, 1901.

The Honorable the SECRETARY OF WAR.

SIR: I have received by your authority two letters from the Paymaster General of the Army, dated respectively March 7 and May 19, 1900, in the former of which decision is asked upon the questions:

1. Whether, as provided by the act of Oetober 1, 1890, (26 Stat., 562), promotion in the U. S. Volunteer regiments should be by seniority in each regiment, or whether it should be by seniority in the arm of the service; and

2. Whether promotions in said volunteer regiments take effect with pay from date of vacancy, as in the case of promotion of officers of the Regular Army, or from date of acceptance of the new commission by the officer promoted.

The letter of May 19, 1900, is as follows:

I have the honor to submit for your decision the within claim of Captain Julien E. Gaujot, 27th U. S. Volunteer Infantry, for pay as captain from the date of the vacancy to which he was promoted, he having been paid as captain only from the date of his acceptance of his appointment as such.

As stated in his communication he was promoted from 1st lieutenant, Company M, 27th U. S. Volunteer Infantry, to captain of Company I, of the same regiment, "to rank from November 2, 1899, rice Langhorne, promoted. On November 16 he accepted his appointment as captain.

As this case is representative of many which have occurred among the regiments of the U. S. Volunteers, now in service, it is deemed important that the date on which such promoted officers became entitled to the higher rate of pay be deter

mined.

Section 1292, Revised Statutes, provides that "in all matters relating to the pay and allowances of officers and soldiers of the Army of the United States, the same rules and regulations shall apply to the Regular Army and to the volunteer forces mustered into the service of the United States for a limited period."

The act of October 1, 1890 (26 Stat., 562), provides that "hereafter promotion to every grade in the Army below the grade of brigadier general throughout each arm, corps, or department of service shall, subject to the examination hereinafter provided for, be made according to seniority in the next lower grade in that arm, corps, or department."

Section 12 of an act approved April 22, 1898 (30 Stat., 363), provides that "all officers and enlisted men of the Volunteer Army, and of the militia of the States when in the service of the United States, shall be in all respects on the same footing as to pay, allowances, and pensions as that of officers and enlisted men of corresponding grades of the Regular Army."

In a decision of the Secretary of War, promulgated in Circular, No. 32, Adjutant General's Office, 1899 (copy herewith), it was held that "the date on which a volunteer officer appointed by the President formally accepts his appointment should be considered as the date of the commencement of his military service. No such officer should be recognized as having been in the military service of the United States under his appointment because of any service that may have been rendered by him prior to the formal acceptance of that appointment."

So far as known to this office there is no law which authorizes pay of the higher grade to the promoted officer, either in the Regular or Volunteer Army, from the date of the vacancy.

Comptroller Gilkeson says (par. 867, p. 225, vol. 3, Dig. Opin.): "No Congressional enactment declares the time when the pay of the higher grade shall begin to accrue to the promoted officer, but by immemorial custom and practice pay is allowed from the date of the vacancy. This is the time fixed by Army Regulations of 1863, which have been recognized and sanctioned by Congress."

It appears that promotion in the U. S. Volunteer regiments brought into service under the act of March 2, 1899, has been by seniority in the entire infantry are f the Volunteer Army.

That I might be advised of the administrative construction put upon the act of March 2, 1899, as to the appointment and promotion of the officers of the volunteer regiments organized under the provisions of section 12 of said act, I addressed : letter to you February 21, 1901, in which I asked:

1. Have the original appointments and promotions of the officers of these rege ments (company and regimental) been made by and with the advice and consent et the Senate or by the President alone?

2. How have promotions in these regiments been made and in accordance with what regulation or other authority?

These questions having been referred to the Adjutant General, he replies in letter dated February 27, 1901:

I am directed by the Secretary of War to inform you that of September 5, 1899, a letter was addressed to the commanding officer of each ve unteer regiment organized * tary of War that "promotions in the volunteer regiments will be made within each under date * communicating the instructions of the Secre regiment and by seniority," and that "all vacancies of second lieutenant will be filled from the enlisted men of the regiment on the recommendation of the commanding officer."

In accordance with the order of the Secretary the senior officers of each regiment, prior to assembling of Congress in December, 1900, were appointed by recess.commissions to fill vacancies occurring in the next higher grade, to rank from date of vacancy in each case, and after Congress assembled the senior officers have been nominated for "promotion" to fill vacancies in the next higher grade, as of the dates of the vacancies to which promoted, have been confirmed agreeably to the nominations and commissioned accordingly.

The original appointments and subsequent promotions of officers of these regiments have in every case been made by and with the advice and consent of the Senate.

The first question submitted by the Paymaster General in his letter of March 7, 1900, is an administrative question which I have no jurisdiction to decide, and which seems to have been administratively decided by the Secretary of War, as shown by letter dated Adjutant General's Office, September 5, 1899, supra.

The practice of paying the higher rate to the Regular Army officers promoted from the date of the vacancy rests upon custom and not upon any provision of law, In the case of Captain Wood (MSS. Dec., vol. 8, p. 85), I said on page 89:

If the question presented by the Auditor were a new one, in the absence of Congressional enactment fixing the time when the pay of the higher grade should begin to accrue to the promoted officer in the Army, I should hesitate to hold that he should be allowed such pay from the date of the vacancy in the higher grade. Section 1204, Revised Statutes, and section 1, act of April 26, 1898, seem only to prescribe the mode in which the vacancies in certain grades in the Army shall be filled, and it would seem to be the most reasonable construction of the law to hold that until the officer next in the order of succession has been duly appointed and has accepted the appointment to the office of the higher grade he is not such officer and therefore not entitled to pay as such.

Such ruling would appear to coincide with the opinion of Attorney General Hoar in 13 Opinion Attorney General, 13, where he says:

By the law of the service in force at the passage of this act, all vacancies in the established regiments or corps to the rank of colonel were required to be filled by promotion according to seniority except in case of disability or other incompetency. Promotions to the rank of captain were made regimentally; to the rank of major, lieutenant colonel, and colonel, according to the arm, as intantry, artillery, etc.

But these laws and regulations prescribe only the mode in which vacancies shall be filled; they do not confer upon the officer next in the order of succession any right to the vacant place. This he can acquire only by virtue of a new commission.

This opinion deals only with the right to promotion and not with the right to pay of the higher grade from the date of the vacancy in case of a promoted officer. The same is true of the other opinions cited by the Auditor as authority for such payments in said manuscript decision, except 10 Opinion Attorney General, 144, and the latter opinion is based upon a more explicit provision of the statute.

The quotation in the Paymaster General's letter of May 19, 1900, supra, from Digest Second Comptroller's Decision (vol. 3, sec. 867), and attributed to Second Comptroller Gilkeson, is really taken from a decision of Second Comptroller Maynard, dated October 25, 1886 (MSS. vol. 54, p. 196). The third holding of that decision was:

No Congressional enactment declares the time when the pay of the higher grade shall begin to accrue to the promoted officer, but by immemorial custom and practice the pay is allowed from the date of the vacancy. This is the time fixed by the Army Regulations of 1863 which have been recognized and sanctioned by Congress. The last sentence in this holding does not seem to be warranted by the facts. The language of the Regulations is:

Officers are entitled to pay from the date of the acceptance of their appointments and from the date of promotion (par. 1346).

The same language is used in the Regulations of 1861 (par. 1315). What the date of promotion is, whether the date of vacancy, date of commission, or date of acceptance, is left by the Regulations as an open question. In the Regulations of 1881 the language is:

A person appointed to the Army or receiving a new appointment therein is entitled to pay from acceptance only. If the appointment creates vacancies to be filled by promotion, the promoted officers are entitled to pay of the new grade from the date of acceptance of the appointee. In all other cases of promotion the officer is entitled to pay from the date of the occurrence of the vacancy (par. 2392).

This appears to be the first explicit regulation authorizing pay from the date of vacancy, and it has been followed in subsequent editions. The regulations appear to have been as silent as the statutes on this point up to 1881, so far as any explicit provisions are concerned.

Although under existing laws and regulations a senior officer in the line of promotion has an inchoate right to promotion in case of vacancy in the next higher grade, it is only an inchoate right which is not complete until he is commissioned as of the higher grade. His right to promotion is further conditioned by the act of October 1, 1890 (25 Stat., 562), and acts amendatory thereof, providing for examination of all officers below the rank of major as a condition precedent to promotion. The allowance of pay for the higher grade from the date of vacancy to date of commission is allowance for a time during which the officer did not hold the rank entitling him to such pay. The allowance therefore is not a statutory allowance, and prior to 1881 was not an explicit regulation allowance. It rests upon immemorial custom acquiesced in by Congress and the accounting officers, and I am not disposed to disturb it.

The question arises whether the same rule of payment is authorized in the case of volunteer officers of the regiments organized under the provisions of section 12, act of March 2, 1899 (30 Stat, 980). The rule making promotions regimentally by seniority and without examination in the U. 8. Volunteer regiments 'as set forth