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James B. Eads, jointly or severally, under existing laws, for a failure to close Pass a Loutre crevasse."

The act of February 26, 1897 (29 Stat., 597), requires you to submit the question whether any liability rests upon the executors of the estate of James B. Eads for a failure to close Pass a Loutre crevasse; and the statement of facts you present in submitting this question clearly requires me to answer it in the negative.

Respecting the plan of compensation under this contract, Attorney General Devens said (16 Opin., 391, 395):

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It will be observed that the plan for compensation to Mr. Eads for maintaining the channel was by a system of quarterly and annual payments for a period of ten years, when a certain sum of $500,000 was to be released to him. and subsequently, upon the maintenance by him of the channel for an additional period of ten years, he receiving certain quarterly and annual payments, at the end of that time another $500,000 was to be released to him. The sum of $1,000,000 was thus, as it were, kept in pledge by the United States for the performance by Captain Eads of his full contract, which was to maintain as well as obtain the. channel proposed by the act."

And again, referring to the retention of the $1,000,000 as security, the same Attorney-General said in another opinion (16 Opin., 420):

"It is a part of the contract of Captain Eads with the United States that the channel constructed shall, when completed, be maintained for the period of twenty years. To assure the performance of this part of his undertaking is the purpose of the above-mentioned security held by the United States."

Mr. Eads stipulated to secure a certain channel in the South Pass and to maintain it for twenty years. The contract expressly left the details of the work to his judgment and skill, the Government contenting itself with results. For securing the channel he was to be paid $5,250,000; for maintaining it, $100,000 per annum in quarterly installments. He secured the channel July 8, 1879, and so earned the sum of $5,250,000. Four million two hundred and fifty thousand dollars of this amount was paid him. The re

maining $1,000,000 was “earned," but "remained as security in the possession of the United States" for the maintenance of the channel for twenty years, one-half to be released and paid at the end of ten years, and the remaining half at the end of ten additional years. The channel having been maintained for ten years, one-half was released and paid under the joint resolution of February 14, 1889 (25 Stat., 1335). The remaining half is being held until the second period of ten years shall expire. Up to this time the channel has been duly maintained, is now being maintained, and presumably will be maintained until the early part of the year 1901, when, under the law and the contract, the full period of maintenance will expire, the works be turned over to the United States, and the remaining half must be released and paid to the representatives of Mr. Eads.

The remote possibility that in some way and at some time the crevasse in Pass a Loutre may injuriously affect the channel in the South Pass, can not justify the United States, when the channel shall have been maintained for twenty years, in refusing to release and pay over money which was earned when the channel was obtained in 1879 and is being held simply as a security for its maintenance for twenty years. The crevasse began to widen in January, 1891. In October, 1891, the representatives of Mr. Eads attempted to close it, but were unable to do so, and in 1894 abandoned the attempt. After that the Government tried to close it, but failed. The money this work cost was expended by the Government on its own motion and at its own risk. The Government made no demand on the representatives of Mr. Eads to close the crevasse; nor did they request the Government to undertake the work. Whether it was necessary or desirable to close the crevasse was a doubtful question. Mr. Eads' representatives, after experiment, apparently answered the question in the negative. The results tend to confirm the soundness of their judgment, and the Government has never officially contested its correctness. No injury to the channel has resulted up to this time, nor is there any claim, or reasonable ground stated for a claim, that injury will result from this source.

After all, the question submitted is one of fact and not of

law, and it is answered in the statement of facts presented. The representatives of Mr. Eads were under no obligation to close the crevasse, unless it was necessary in order to maintain the channel and protect the works. The question whether a necessity exists is one of fact, not of law, and you neither find nor affirm the existence of such necessity. On the contrary, all the facts and inferences are opposed to its existence. If there were any showing that the representatives of Mr. Eads have failed to do anything required under the contract to make the improvement permanent in character, I should be disposed to hold that the Government might properly decline to release the money now in its possession which belongs to them, until the necessary work should be done; or might do the work and charge it against the security fund; but there is no showing of fact which requires or would justify such holding on my part. Indeed, the facts conceded by the Government in your statement leave no course open except to release and pay over the money at the expiration of the statutory period of maintenance; for they preclude the possibility of successful defense in the judicial proceedings which would inevitably follow a refusal to do so. The question you submit is therefore answered in the negative.

Respectfully,

The SECRETARY OF WAR.

JOHN W. GRIGGS.

NAVAL OFFICERS-RELATIVE RANK.

Under the act of March 3, 1899 (30 Stat., 1004), reorganizing the personnel of the Navy and Marine Corps, Charles H. Laucheimer, a captain of the line in the Marine Corps, was, upon the date of the passage of that act, appointed and commissioned assistant adjutant and inspector with the rank of major, and on March 11 following took the oath of office. On March 23, 1899, Charles H. McCauley, a captain and adjutant quartermaster in the Marine Corps, was promoted to assistant quartermaster, with the rank of major, to take rank from March 3. He took the oath of office on March 30. The question of the relative rank of these officers being presented for determination, Held:

1. That the advancement of an officer to a higher grade, one to which he could not then succeed in due course by seniority, while called an appointment is, in fact and effect, a promotion. Major Laucheimer's advancement should therefore be taken as a promotion, and there is nothing in this regard to affect their relative rank.

2. As Major Laucheimer's commission and induction into office each antedate by several days that of Major McCauley's, during that period, the former ranked the latter. This rank was not lost, nor a superior one conferred, by the subsequent promotion of Major McCauley. 3. As both officers were, in fact, promoted, the earlier commission and rank of Major Laucheimer entitle him to precedence in rank. 4. The Secretary of the Navy, by virtue of his general power under the President to make rules and regulations for the government of the Navy, may determine, with the force and effect of law, the relative rank of naval officers. Usually this is better done by general rules than by decisions in particular cases, but it may be done either way.

DEPARTMENT OF JUSTICE,

May 22, 1900.

SIR: I have the honor to reply to your note of April 24, 1900, in which you request my official opinion, upon the facts stated, as to the relative rank of two officers in the Marine Corps. The facts as stated are these:

Charles H. Laucheimer, after completing the prescribed course of a naval cadet in the Navy, was commissioned second lieutenant in the Marine Corps July 1, 1883; promoted first lieutenant January 9, 1890; promoted captain August 10, 1898; appointed assistant adjutant and inspector, with the rank of major, to rank from March 3, 1899, under the act of March 3, 1899, reorganizing the personnel of the Navy and Marine Corps (30 Stat., 1004). His commission is dated March 3, 1899, and he accepted the appointment and took the oath of office March 11, 1899.

Charles L. McCauley was appointed from civil life captain and adjutant quartermaster in the Marine Corps June 27, 1897, and promoted assistant quartermaster, with the rank of major, March 23, 1899, to fill a vacancy created by the act above referred to, to rank from March 3, 1899, and took the oath of office March 30, 1899.

From your statement it appears that one of these officers, "Major Laucheimer, was advanced from the next lower rank 'by selection from the line officers of the active list of the Marine Corps,' and the other, Maj. Charles L. McCauley,

by promotion according to seniority of the officers in bis (the quartermaster's) department,'" under the act of March 3, 1899, above referred to. And it will be seen that these two officers are in different departments of the Marine Corps-one in that of the adjutant, and the other in that of the quartermaster; that both have the same grade and nominal rank; both were commissioned to fill vacancies created by the act of March 3, 1899, above referred to, and while each took rank from the same date, the commission of Major Laucheimer and also his induction into office antedates by several days that of Major McCauley, while, on the other hand, Major McCauley was promoted in due course, and Major Laucheimer was appointed to his present office, and, again, Major Laucheimer is much the senior in service.

The case is anomalous and, as I understand from your note, is without real precedent in the Army or Navy, and the difficulty arises from the conflicting claims to rank, which these facts give to the two officers, respectively.

I quite concur with the opinion of Attorney-General McVeagh (17 Opin., 196), and think that, except as it recognizes the general rule which has regard for previous service, section 1219, Revised Statutes, does not apply to such a case as that which you submit.

Nor is much assistance, in this direction, afforded by the above-mentioned act of March 3, 1899, under which, and to fill vacancies thereby created, these officers were selected. The only portion of that act, pertinent to this inquiry, is section 22, which provides that—

"The staff of the Marine Corps shall consist of one adjutant and inspector, one quartermaster and one paymaster, each with the rank of colonel; one assistant adjutant and inspector, two assistant quartermasters and one assistant paymaster, each with the rank of major; and three assistant quartermasters, with the rank of captain. That the vacancies created by this act in the departments of the adjutant and inspector and paymaster shall be filled first by promotion according to seniority of the officers in each of these departments, respectively; and then by selection from the line officers on the active list of the Marine Corps not below the grade of captain, and who shall have seen not less than

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