4. This view is in harmony with earlier opinions of this office. In an opinion under date of December 11, 1917, this office dealt with the case of Charles W. Blake, Master of the U. S. A. Chartered Transport Teresa. He was charged with, and convicted of, failing to obey orders received from the Commanding General at the Port of Embarkation, Newport News, on September 21, 1917, concerning the sailing of his ship. The ship was not owned by the Government but was merely chartered. The ship was in the Port of Embarkation, Newport News, at the time. It was engaged to carry military supplies from that point. along the line of communication to France. The master was not employed by the United States. Nevertheless, it was held that, within. the meaning of the provisions of the 2d Article of War quoted, supra, he was serving with the armies in the field and was subject to military law.

The case of Charles E. Gerlack involved construction of these provisions. Gerlack went to Europe as mate on the S. S. McClellan, used as a military transport. He was there discharged and sent back on the army transport El Occidente. While the latter ship was in the danger zone near the Azores, Gerlack refused to take a lookout and to assist in safeguarding the ship. He was tried for disobedience of orders, convicted by a general court-martial, and sentenced to a term of confinement, the United States Disciplinary Barracks, Fort Leavenworth, Kansas, being designated as the place of confinement. After conviction he made application for a writ of habeas corpus to the United States District Court for the Southern District of New York. The court held that he was subject to military law and dismissed the writ. 5. In the opinion of this office, Norwood, at the time of the alleged attempt at theft, was a person subject to military law and his offense is within the jurisdiction of a court-martial.

Whether or not jurisdiction should be asserted in this case is a question of administrative expediency. If the civil authorities should proceed in the case and make proper application for his surrender to them for trial for his alleged offense, such application should be given consideration in accordance with the policy heretofore announced by the War Department with respect to the surrender to the civil authorities for trial of persons subject to military law, accused of civil offenses.

.[Signed] E. II. Crowder, Judge Advocate General.

29. DISCHARGE OF REGULAR ARMY OFFICER TEMPORARILY PROMOTED

Office IV E2.

Memorandum for the Adjutant General.

April 9, 1918.

1. The question presented is whether an officer of the Regular Army who has been given a temporary promotion in the Regular Army under section 8 of the Selective Draft Act of May 18, 1917 (40 Stat. 76), can be discharged from this office under section 9 of the same act, the statute requiring such promotions to be confirmed by the Senate.

2. The pertinent parts of section 8, Selective Draft Act of May 18, 1917 (40 Stat. 76, 81), provides:

"Vacancies in all grades in the Regular Army resulting from the appointment of the officers thereof to higher grades in the forces other than the Regular Army herein provided for shall be filled by temporary promotions and appointments in the manner prescribed for filling temporary vacancies by section 114 of the National Defense Act, approved June 3, 1916."

Section 114, National Defense Act of June 3, 1916 (39 Stat. 166, 211 [Comp. St. 1916, § 1908a]), in pertinent part provides:

"That officers temporarily promoted or appointed under the terms. of this section shall be promoted or appointed by the President by and with the advice of the Senate for terms that shall not extend beyond the war or the passing of the emergency for which additional forces were brought into the military service of the United States. and at the termination of the war or the passing of the emergency, said officers shall be discharged from the positions held by them. under their temporary commissions or appointments."

Section 9, Selective Draft Act, supra, in pertinent part, provides: "That the appointments authorized and made as provided by the second, third, fourth, fifth, sixth, and seventh paragraphs of section one and by section eight of this act and the temporary appointments in the Regular Army authorized by the first paragraph of section one of this act, shall be for the period of the emergency unless sooner terminated by discharge or otherwise. The President is hereby authorized to discharge any officer from the office held by him under such appointment for any cause which, in the judgment of the President, would promote the public service. * * "

*

3. In considering the foregoing provisions the rule of construction that a statute must be construed with reference to its leading idea and purpose; that it is passed as a whole and not in sections and is animated by one general purpose and intent which must not be lost sight of; and that each part or section must be construed in connection with every other part or section so as to produce a harmonious whole, must be adopted. Lewis' Sutherland, Statutory Construction, 568.

4. The leading idea and purpose of the Selective Draft Act of May 18, 1917, supra, is to increase temporarily the military establishment of the United States and to give the President the greatest freedom of action in its organization and the appointment and removal of its officers. The Act contains 14 sections and with the exception of sections 10, 11, 13 and 14 each section in express terms confers power upon the President looking to the single end, that is, the greatest freedom of action to raise, organize, equip and officer the temporary military forces of the United States.

5. Paragraph 1, section 1, Id., authorizes the President to terminate provisional appointments whenever it is determined in a manner to be prescribed by him that an officer has not suitable fitness for permanent appointment. Section 9, Id., provides that the appointments authorized and made as provided for in the remaining paragraphs of section 1 and section 8, Id., shall be for the period of the emergency

unless sooner terminated by discharge or otherwise and gives the President authority to discharge any officer from the office held by him under such appointment for any cause which in the judgment of the President will promote the public service. The tenure of office of officers who are temporarily promoted in the Regular Army to the vacancies occasioned by the appointment of officers of higher grades in the Regular Army office in the other forces, is for the period of the war or the passing of the present emergency and is in effect the same tenure as that of regular officers appointed in the temporary forces whose places in the Regular Army they are promoted to fill. The President is given express authority to discharge any officer from the office held by him under temporary appointment, although officers up to the grade of colonel are appointed by the President alone and officers above the grade of colonel are appointed by the President by and with the advice of the Senate. Did Congress intend to make a distinction between officers of the Regular Army thus promoted and the officers appointed or is the word. "appointment" as used in section 9, Id., broad enough to include officers temporarily promoted? No reason suggests itself why any officer of the Regular Army temporarily promoted therein should not be discharged in the same manner that an officer of the same force temporarily appointed to an office in the additional forces. The purpose of the Act is furthered by the inclusion and it requires no strained construction of the word "appointment" to include them.

6. The word "appoint" has been defined "to designate, ordain, prescribe, nominate." People v. Fitzsimmons, 68 N. Y. 514.

"A promotion in the army is an appointment to a higher office therein. The custom so far as I am aware is to nominate the promoted officer to the Senate and subsequently to appoint and commission him anew." 30 Op. Atty. Gen. 180.

These definitions are in harmony with the spirit of the Act and give the President the power that was clearly contemplated by Congress. To adopt a narrower construction of the word "appointment" and to hold that it does not include an officer temporarily promoted to vacancies in the Regular Army will deny the President this power and will lead to anomalous situations. For instance, a Major of the Regular Army is appointed a Colonel in the National Army and the senior Captain in the Regular Army is promoted to temporary Major in the Regular Army. The President terminates the Regular Army Major's commission as Colonel in the National Army and he reverts to his status as Major in the Regular Army. It is then necessary to terminate the commission of the Captain who holds the temporary commission as Major. The tenure of his temporary commission as Major is the period of the war or the passing of the emergency. Unless the President has the power under section 9, Id., to discharge him, how is his office terminated?

Having regard to the manifest object of the Act and of the rule of construction that "the natural import of words is their literal sense. but this may be greatly varied to give effect to the fundamental purpose of the statute." Lewis' Sutherland, Statutory Construction, 374, it is believed that the word "appointment" as used in section 9, Id..

PART II. WAR-TIME SOURCES

can properly be construed to include officers temporarily promoted and it follows that the President can discharge such officers under the provisions of that section.

7. This conclusion is strengthened by the fact that as an incident to his power to appoint, the President has power to discharge military officers (4 Op. Atty. Gen. 1-603; 6 Op. Atty. Gen. 4; 8 Op. Atty. Gen. 233-288; 15 Op. Atty. Gen. 421; Blake v. United States, 103 U. S. 236, 26 L. Ed. 462), and "In the absence of constitutional or statutory provisions the President can, by virtue of his general power of appointment, remove an officer even though he was appointed by and with the consent of the Senate" (Shurtleff v. United States, 189 U. S. 311, 23 Sup. Ct. 535, 47 L. Ed. 828). This office in considering this power held:

"The power to dismiss, which, as being an incident to the power to appoint public officers, had been regarded since 1789 as vested in the President by the Constitution, was, for the first time in 1866 (by the act of July 13 of that year, reenacted in the second clause of the present ninety-ninth (118) Article of War [Comp. St. 1916, § 2308a] and in section 1229, R. S. [Comp. St. 1916, § 2001]) expressly divested by Congress in so far as respects its exercise in time of peace. By the statute law it is now authorized only in time of war. 13323, Sept. 18, 1902; 13654, Nov. 13, 1902; Dig. Op. J. A. G. 1912, C. p. 819.

8. There being no limitation upon the inherent power of the President to dismiss or discharge an officer in time of war, has an officer of the Regular Army who has been temporarily promoted and is discharged from his temporary commission a right to a court-martial under section 1230, R. S. (Comp. St. 1916, § 2003)?

9. If the word "dismiss" used in section 1230, R. S., is given its usual definition, any officer discharged from the National Army, the National Guard, or temporary appointments or promotions, could demand a court-martial unless this section has been repealed by implication or is applicable only to the Regular Army. It is manifest that Congress did not intend that the President's power under section 9 of the Selective Service Act to remove the numerous officers provided for therein should be hampered by such officers demanding a court-martial under section 1230, R. S. It is impossible to reconcile the powers of the President under section 9, Selective Service Act, supra, and section 1230, R. S. It must therefore follow that section 1230, R. S., is repealed by implication. Repeals by implication are not favored, and having regard to the policy of the law as it relates to the commissions of the officers in the Regular Army, it can, and should properly, be held that section 1230, R. S., is applicable only when an officer of the Regular Army is dismissed from his Regular Army commission. An officer of the Regular Army holding a temporary promotion or appointment and discharged therefrom reverts to his status as an officer in the Regular Army and he is not in any sense dismissed therefrom.

10. I am of the opinion that an officer of the Regular Army who has been given a temporary promotion in the Regular Army under section 8 of the Selective Draft Act of May 18, 1917 (40 Stat. 76).

can be discharged from this office by the President under section 9 of the same Act and that when so discharged he is not entitled to a court-martial under section 1230, R. S.

[Signed] S. T. Ansell, Acting Judge Advocate General.

30. TRANSFER FROM NATIONAL ARMY TO ENLISTED RESERVE CORPS 6th Ind.

War Department, J. A. G. O., April 23, 1918.—To the
Adjutant General.

1. The Adjutant General refers to this office for remark the request of the Acting Quartermaster General for a decision as to the legality. of the transfer of enlisted men of the National Army to the Enlisted Reserve Corps, inactive list, to enable them to accept employment in a war industry or to continue their studies in medical or military institutions, attention being directed to the provisions of the Act of June 3, 1916, creating the Enlisted Reserve Corps which provides for the organization thereof by actual enlistments and not by the transfer of enlisted men from another branch of the military service.

It appears that about 3,000 or more enlisted men have been transferred to the Enlisted Reserve Corps, inactive list, for the purpose of continuing medical, dental and veterinary studies or for the purpose of engaging in an industry necessary to the prosecution of the war.

2. The Enlisted Reserve Corps is a component part of the Army of the United States and under the Act of June 3, 1916, with the exceptions of the draft authorized under sections 79 and 111, Id. (Comp. St. 1916, §§ 3044q, 3045), all the component parts of the Army of the United States were maintained by volunteer enlistments for terms fixed therein.

The Selective Service Act, May 18, 1917 (40 Stat. 76), continues all enlistments in the Army of the United States then in force for the period of the emergency and authorizes the President to raise by selective draft the several forces therein mentioned. One of these forces is the so-called National Army. The term of service of its enlisted personnel is the period of the existing emergency and they are subject. to the laws and regulations governing the Army of the United States in so far as such laws and regulations are applicable to persons whose permanent retention in the military service is not contemplated. Therefore, the question involves only the right of transferring an enlisted. man from one component force to another.

3. In an opinion of this office dated September 17, 1917 (J. A. G. 6-200), in which the question of the transfer of officers and enlisted men from one component force of the Army of the United States to another was dealt with at length, it was held:

"In the light of what I have said, my response to the specific question must be that transfers of enlisted personnel from one force to another, in the sense of absolute incorporation in the force to which transferred, is permissible under the law; and, giving the reasoning the wider application it deserves, it seems to me to require the Department to abolish many of the distinctions which it conceives to exist between