ulations in such cases provided, he executed a bond to serve for eight years, unless discharged by competent authority,—thus recognizing his liability to be discharged.

As to the fourth proposition of appellant, that, in enacting the statute of 1882, congress assumed the power of appointment which belongs to the executive, we do not so regard the act. Congress did. not thereby undertake to name the incumbent of any office. It simply changed the name, and modified the scope of the duties. This, we think, it had the power to do. We think, too, that the appellant came within the terms of the act of 1882. There is a very plain distinction between this case and that of a cadet engineer, fully explained in U. S. v. Redgrave, 116 Ú. S. 474, 6 Sup. Ct. 444, 29 L. Ed. 697. The statute in express terms provides that "the academic course of cadet midshipmen shall be six years." If the navy department had assumed to make any regulations by which the final graduation shall take place in less time, such regulations would have been void. But it did not so assume. It arranged for a two-years course afloat as a part of the academic course, and exacted a preliminary examination to test the cadet's qualifications therefor. But the cadet afloat was a member of the academy. He still was subject to a final examination at that institution, and, without such examination successfully sustained, never became a graduate. He was not so denominated until then, either in the Naval Register or elsewhere; and it was not until that final test had been sustained that, either by the practice of the academy or by the provision of the statute, he did or could receive his certificate of graduation. The judgment of the court of claims is affirmed.

5. SCHWENK v. WYCKOFF.

(Court of Errors and Appeals of New Jersey, 1890. 46 N. J. Eq. 560, 20 Atl. 259, 9 L. R. A. 221, 19 Am. St. Rep. 438.)

Appeal from court of chancery.

REED, J. The right of the appellee, who was the complainant below, to the relief for which she prays, rests upon an assignment made to her husband by the defendant. The subject-matter which the assignment was supposed to operate upon was the unearned pay of the defendant, to become due to him as a retired officer of the United States army.

In consideration of the cause we meet at the outset a difficulty which lies at the root of the complainant's case. It exists in the shape of an objection interposed by the defendant that this assignment purports to transfer a chose in action belonging to a class which are not assignable, or what in effect produces the same result, the assignment of which the courts will not enforce or recognize. The rule is established in the English courts that the unearned salary or emolument of an officer which may become payable during his life is incapable of assignment. This restriction upon the general power to dispose of rights having a potential existence is put upon the ground that the recognition of

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such assignments would operate prejudicially upon the public service. The considerations which led to this judicial result were in substance the following: It was apparent that the salary or remuneration incident to a public office, as a rule, was essential to a decent and comfortable support of the incumbent. If the officer should be deprived of this support, there would arise a hazard of his being driven to an inappropriate meanness of living, of his being harassed by the worry of straitened circumstances, and tempted to engage in unofficial labor, and of the likelihood of his falling off in that official interest and vigilance which the expectation of pay keeps alive. It was because of these probable consequences that the courts refused to countenance any act or proceeding which might result in stripping the officer of his anticipated reward. The cases in which this question has been mooted, and the foregoing rule established, in the English courts, are the following: Flarty v. Odlum, 3 Term R. 681; Barwick v. Reed, 1 H. Bl. 627; Arbuckle v. Cowtan, 3 Bos. & P. 328; Davis v. Marlborough, 1 Swanst. 79; Lidderdale v. Montrose, 4 Term R. 248; Stone v. Lidderdale, 2 Anstr. 533; Wells v. Foster, 8 Mees. & W. 149; Palmer v. Bate, 2 Brod. & B. 673.

In the case of Flarty v. Odlum, 3 Term R. 681, it was held by the court of king's bench that this rule was applicable to the assignment of half-pay by an officer of the British army. It was ruled that future accruing payments did not pass to an assignee appointed under proceedings against an insolvent officer taken for the benefit of his creditors. Afterwards, in the case of Lidderdale v. Duke of Montrose, 4 Term R. 249, the validity of a voluntary assignment of the half-pay of an officer came before the same court, and it was held that there was no distinction to be made between a voluntary assignment and an assignment, as in the last-mentioned case, under the insolvent debtor's act, and so the voluntary assignment was also held to be void. The same dispute, under the name of Stone v. Lidderdale, was shifted into the court of exchequer, and by that court it was remarked that halfpay was granted for the purpose of keeping experienced officers in such a situation as not to be compelled to turn themselves to other pursuits, or to be by other circumstances reduced to extreme poverty. The assignment was therefore held to be void. 2 Anstr. 533. Since the decision of these causes the nullity of an assignment of unearned half-pay by an officer has been repeatedly recognized. The remarks of Lord Alvanley in Arbuckle v. Cowtan, supra, and of Baron Parke in Wells v. Foster, supra, display an understanding in the English courts that by the case of Flarty v. Odlum this question had been definitely set at rest.

In this country there are two cases in which the assignment of a portion of a salary to become due had been held valid. One case is Brackett v. Blake, 7 Metc. (Mass.) 335, 41 Am. Dec. 442, in which case it was held that the unearned salary of a city marshal was capable of assignment. It is quite remarkable that the only question discussed in the opinion of Chief Justice Shaw in that case was whether the anticipated salary was such a possibility, coupled with an interest as to be capable of assignment. Upon the court's concluding that it was such

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." 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.