an interest, the assignment was sustained, without a word in respect to the point raised in the brief of counsel that the assignment was opposed to public policy. This question seems to have been entirely. overlooked in the decision of that case.

There are two subsequent cases in Massachusetts sometimes cited as sustaining the same doctrine; but both these cases, namely Mulhall v. Quinn, 1 Gray (Mass.) 105, 61 Am. Dec. 414, and Macomber v. Doane, 2 Allen (Mass.) 541, as decided, involve only the question of the assignability of wages to become due upon contracts for services rendered. The second, and only other, case in which the assignment of the prospective pay of a public officer has been the subject of judicial approval, is that of Bank v. Hastings, 15 Wis. 78. This case involved the assignment of the future salary of a judge. In delivering the opinion the judge remarked that it had not been contended that the doctrine of the English cases holding that assignments of the pay of officers in the public service, judges' salaries, pensions, etc., were void, was applicable to the condition of society, or to the principles of law. or public policy, of this country. The soundness of the rule laid down by the English cases, however, was not impugned. Nor was it explained in what way the propriety of supporting this rule of public policy ceased under our political or judicial system. Nor does the possibility of any rational explanation seem clear.

The object of the rule in both countries is to secure the most efficient service to the public by those who are appointed or elected to perform public duties. So long as there are public officers who are remunerated for their services, the same conditions exist in both countries which renders the stripping of such officer of his expectation of pay impolitic. In respect to this general rule of policy, therefore, no solid discrimination can be made between the political situation of this country and that in which the rule was first adopted. This was the view taken by the court of appeals of the state of New York in the case of Bliss v. Lawrence, 58 N. Y. 442, 17 Am. Rep. 273, after a thorough review of the English and American cases by Judge Johnson. This has become. a leading case in this country, and the doctrine announced by it, namely, that the assignment by a public officer of the future salary of his office is contrary to public policy, and void, has been followed in this country in the cases of Bangs v. Dunn, 66 Cal. 72, 4 Pac. 963; Schloss v. Hewlett, 81 Ala. 266, 1 South. 263; Beal v. McVicker, 8 Mo. App. 202. Involving the same principle is the case of Field v. Chipley, 79 Ky. 260, 42 Am. Rep. 215.

The foregoing doctrine in respect to the non-assignability of unearned official pay may be regarded as settled in this country, as it is in England, by the great weight of reason and authority. Nor is there any difference between the position of a retired army officer in this country, and those officers in respect to whose pay the English court were ruling. The officer here, as well as there, although retired from actual campaigning, is still subject to military orders. By the federal statute he is liable to be assigned to officer soldiers' homes, and to instruct in military institutes. Rev. St. U. S. §§ 1256, 1259, 4816. He stands, therefore, upon the footing of an officer owing service to the

public when called upon for its rendition, and the rule announced protects his pay from himself and his creditors until he earns it. The decree below must be reversed.

Reversed unanimously.

6. RAY v. GARRISON.

(Court of Appeals of District of Columbia, 1914. 42 App. D. C. 34.) Hearing on an appeal by the plaintiff from a decree of the Supreme Court of the District of Columbia dismissing his bill for an injunction to restrain the defendants from taking any action in violation of his right to be nominated by the President as deputy paymaster general and from recommending that the President nominate any other than the plaintiff to such office. Affirmed.

The Court in the opinion stated the facts as follows:

This is an appeal from a decree in the supreme court of the District dismissing, upon demurrer, appellant Beecher B. Ray's bill for an injunction to restrain Lindley M. Garrison, Secretary of War, and Henry Breckinridge, Assistant Secretary of War, appellees, "and their respective agents and subordinates, from taking any action or steps of whatsoever kind in violation of plaintiff's (appellant's) right to be nominated by the President of the United States to the Senate thereof as deputy paymaster general with the rank of lieutenant colonel, and from taking any action or steps to certify in any manner whatsoever, make known, or indicate to the President of the United States or any other officer thereof, that anyone other than plaintiff is entitled to such office and the nomination thereto," and for such other and further relief as the facts may warrant.

Appellant sets forth in his bill that he is in all respects duly qualified and acting as senior major in the quartermaster's corps of the Army, and, as such, is lawfully entitled to promotion as deputy quartermaster general of the United States with the rank of lieutenant colonel, agreeably to the provisions of the act of October 1, 1890, 26 Stat. at L. 562, chap. 1241, U. S. Comp. Stat. 1901, p. 849, which require that promotions to every grade in the Army below the rank of brigadier general "shall, subject to the examination hereinafter provided for, be made according to seniority in the next lower grade." He further avers that appellees intend "to and will certify and make known to the President of the United States that someone other than plaintiff should be nominated by said President to the Senate of the United States as entitled to the vacancy existing in the quartermaster's corps in the rank of lieutenant colonel, to which office plaintiff is by law justly entitled and has the sole and exclusive right thereto." Mr. Justice ROBB delivered the opinion of the Court:

It is the contention of appellant that "while no specific statutory duty is pointed out, yet the threatened action is within the reach of the court because any attempted violation of the act of 1890 is necessarily illegal and unconstitutional." The initial question, therefore, is whether appellees have been shown to have such connection with the execution of this statute as that their acts may be drawn in question here.

In Fitts v. McGhee, 172 U. S. 516, 19 Sup. Ct. 269, 43 L. Ed. 535, the court ruled that the suit brought by the receiver of a railroad against the attorney general of the State of Alabama and the solicitor of the 11th judicial circuit of that State, to restrain them from taking steps to enforce, against the complainants, the provisions of a law of that State reducing tolls which had been exacted of the public under a prior law for crossing on a bridge of the railroad over a river, was a suit against the State and therefore could not be maintained. The court, after pointing out that neither official against whom the suit was brought was charged by law with any special duty in connection with the enforcement of the act in question, observed: "In the present case, as we have said, neither of the State officers named held any special relation to the particular statute alleged to be unconstitutional They were not expressly directed to see to its enforcement. If, because they were law officers of the State, a case could be made for the purpose of testing the constitutionality of the statute, by an injunction suit brought against them, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor and the attorney general, based upon the theory that the former as the executive of the State was, in a general sense, charged with the execution of all its laws, and the latter, as attorney general, might represent the State in litigation involving the enforcement of its statutes." In Ex parte Young, 209 U. S. 123, 157, 28 Sup. Ct. 441, 52 L. Ed. 714, 728, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764, the court ruled that in making an officer of the State a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, "such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the State, and thereby attempting to make the State a party."

No duty is imposed upon the appellees in respect to the execution of the act in question. Section 3 authorizes the President to prescribe a system of examination of all officers of the Army below the rank of major to determine their fitness for promotion, and provides that when any officer fails to pass a satisfactory examination and is reported unfit for promotion the officer next below him in rank who does pass shall receive the promotion. But it is not even averred that appellees are charged or have been interested with any duty in respect of such examination. In substance, appellant's grievance is that having successfully passed the examination upon which his right to promotion in part depends, appellees volunteered to advise the President to promote someone else. If the statute required appellees to certify to the President the name of the officer entitled to promotion, some duty would then be laid upon them, and the court would be justified in interpreting the act; for where an official is directed to do a certain act the court must assume that the executive desires its legal performance. Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. Where, however no such duty is imposed, there is no real justification for judicial interference. An attempt to invoke judicial interference in such a case is in effect an attempt to reach the executive through his representative, which may not be done.

While we fully appreciate the importance of this case to appeilant, we are constrained to rule that no basis has been laid for judicial action. The decree must be affirmed, with costs.

Affirmed.

7. UNITED STATES v. ANDREWS.

(Supreme Court of the United States, 1916. 240 U. S. 90, 36 Sup. Ct. 349, 60 L. Ed. 541.)

Appeal from the Court of Claims to review an award of half pay to an Army officer while absent on leave.

See same case below, 49 Ct. Cl. 391.

The facts are stated in the opinion.

Mr. Chief Justice WHITE delivered the opinion of the court:

The United States appeals from a judgment awarding the appellee $325, found to be due him under Revised Statutes, § 1265, Comp. Stat. 1913, § 2104, for half pay as a captain of cavalry of fifteen years' service for a period of three months from August 1 to October 31, 1907, during which time it was found he was absent on leave. The court stated the facts as follows:

"The claimant, having accepted employment with a commercial company was granted six months' leave of absence, to take effect January 1, 1907, by 2, Special Orders, No. 305, War Department, dated December 28, 1906, which leave was extended for four months, to take effect July 1, 1907, and to expire October 31, 1907, by ¶ 26, Special Orders, War Department, dated June 17, 1907.

"While the claimant was enjoying the extension of his leave of absence the Adjutant General of the United States Army, on July 31, 1907, sent him the following telegram:

"By direction of the President, although your leave is not revoked, your absence from this date will be without pay.'

"His leave without pay from August 1, 1907, to October 31, 1907, was not requested by the claimant, but he did not file a protest against such action nor relinquish his leave and return to duty.

"The claimant was absent from duty from January 1, 1907, to October 31, 1907. From August 1, 1907, to October 31, 1907, he received no pay. His half pay for said period was $325." [49 Ct. Cl. 391.]

It is apparent from the authorities cited in the per curiam opinion of the court below (Glavey v. United States, 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247; Whiting v. United States, 35 Ct. Cl. 291, 301; Dyer v. United States, 20 Ct. Cl. 166) that the allowed recovery was based upon the conclusion that the half pay during the leave of absence was expressly sanctioned by law (Rev. Stat. § 1265), and hence any condition conflicting with such statutory right was void, and that the officer being entitled to rely upon the statute, no estoppel against him could be implied because of his having acted upon the leave, albeit it contained a condition in conflict with the rights conferred by the statute. To test the merits of these conclusions will dispose of the entire case, since all the contentions of the government are embraced

in three propositions: 1, the asserted existence of authority to grant the leave, conditioned on its being without pay, notwithstanding the statute; 2, even if such power did not exist, the binding effect of the condition upon the officer who accepted the leave which was subject to it; and 3, in any event, the impossibility of separating the grant of leave from the condition upon which the leave was based, thus, under the hypothesis of illegality, rendering the grant void, and causing the absence from duty which was enjoyed under the apparent sanction of the grant to be an absence without leave, for which, under the statute, no right to pay existed. It is manifest that these contentions assume, as did the conclusions of the court below, that the telegram stated in the findings operated to grant a new leave for the three months therein specified, subject to the condition that it should be without pay, and in separately testing the propositions we shall treat the telegraphic order as having that significance.

ute.

1. As in view of the plain text of Revised Statutes, § 1265, there is no room for disputing that the right to half pay during the period of the leave in question was conferred by the statute, there is and can be no dispute that, tested by the statute alone, the court below did not err in allowing the claim for such half pay. But the contention is that error was committed because the conferring of the right to pay by the statute was not exclusive, and therefore did not deprive of the authority as an incident to the power to grant the leave to affix the condition that the leave should be without pay notwithstanding the statIt is unnecessary however, to stop to point out the unsoundness of this proposition, since the error upon which it rests is authoritatively demonstrated by previous decisions which substantially leave the proposition not open for discussion. United States v. Williamson, 23 Wall. 411, 416, 23 L. Ed. 89, 90; United States v. Wilson, 144 U. S. 24, 12 Sup. Ct. 539, 36 L. Ed. 332; United States v. Shields, 153 U. S. 88, 91, 14 Sup. Ct. 735, 38 L. Ed. 645, 646; Glavey v. United States, 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247. Nor, in contemplation of the cases which we have just cited, and additionally, in view of the provision of Revised Statutes, § 1229, Comp. Stat. 1913, § 2001, that "no officer in the military or naval service shall in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof," is there any necessity to point out the want of application of the authorities. dealing with the power to dismiss civil officers which are cited as a basis for the proposition that a like power applies to Army officers, and therefore, as there was authority to dismiss, the lesser right of granting the leave without pay necessarily obtained. So, also, it is unnecessary to enter into any detailed analysis of the decision in Hartigan v. United States, 196 Ú. S. 169, 25 Šup. Ct. 204, 49 L. Ed. 434, since that case concerned the power to remove a cadet at the Military Academy, and the recognition of the right to exercise that authority was in express terms based upon the view that although in a sense a part of the Army, cadets at the Military Academy were not officers within the intendment of Revised Statutes, § 1229, and indeed the opinion in the Hartigan Case in substance refutes the extreme contention as o power which is now sought to be sustained.