The sections of the Revised Statutes to which you call my attention, and which seem to embody the statutory law on the subject, are as follows:

"SEC. 1245. When any officer has become incapable of performing the duties of his office, he shall be either retired from active service, or wholly retired from the service, by the President, as hereinafter provided.

“SEC. 1246. The Secretary of War, under the direction of the President, shall, from time to time, assemble an army retiring board, consisting of not more than nine nor less than five officers, two-fifths of whom shall be selected. from the Medical Corps. The board, excepting the officers selected from the Medical Corps, shall be composed, as far as may be, of seniors in rank to the officer whose disability is inquired of.

"SEC. 1247. The members of said board shall be sworn in every case to discharge their duties honestly and impartially.

"SEC. 1248. A retiring board may inquire into and determine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of performing the duties of his office, and shall have such powers of a court-martial and of a court of inquiry as may be necessary for that purpose.

"SEC. 1249. When the board finds an officer incapacitated for active service, it shall also find and report the cause which, in its judgment, has produced his incapacity, and whether such cause is an incident of service.

"SEC. 1250. The proceedings and decision of the board shall be transmitted to the Secretary of War, and shall be laid by him before the President for his approval or disapproval and orders in the case.

"SEC. 1251. When a retiring board finds that an officer is incapacitated for active service, and that his incapacity is the result of an incident of service, and such decision is approved by the President, said officer shall be retired from active service and placed on the list of retired officers.

"SEC. 1252. When the board finds that an officer is incapacitated for active service, and that his incapacity is

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not the result of any incident of service, and its decision is approved by the President, the officer shall be retired from active service, or wholly retired from the service, as the President may determine. The names of officers wholly retired from the service shall be omitted from the Army Register."

So far as I am informed, there is no authority on the subject except the decisions of the Judge-Advocate-General of the Army, mentioned in your letter. It was held by that official, in 1886, that

"An officer may, in the discretion of the President, legally be retired by reason of an incapacity resulting from habitual drunkenness." (Sec. 2196; Dig. Op. J. A. G.)

Again it was held, in 1889:

"That the law contemplated an existing and not a purely prospective and contingent incapacity; and that an inquiry into an officer's general efficiency could be pertinent only in so far as it could be regarded as going to show that his inefficiency, if found, was the result of an impairment. of health." (Sec. 2204, Ib.)

And a further opinion was given, in 1890, to the effect that

“The 'cause' of 'incapacity' intended in section 1249, Revised Statutes, was a physical cause; that moral obliquity was not had in view; and that the matter of the financial integrity of the officer was beyond the jurisdiction of the board. So, held that the board was not authorized to recommend the retirement of an officer because he did not pay his debts. Held, also, that the inability of a disbursing officer to furnish a bond when duly required to do so was not sufficient ground for his retirement." (Sec. 2203, Ib.)

While none of these opinions of the Judge-AdvocateGeneral touch the precise question embodied in your request, they are entirely consistent with the principles which must, in my opinion, determine the answer to that question. The provisions of law regulating the retirement of officers are in no sense disciplinary or punitive in their purpose. The officer under inquiry may have become "incapable of performing the duties of his office" by reason

of causes resulting from a most brilliant and meritorious service on his part, and yet he would, under such circumstances, be none the less liable to retirement under the provisions of section 1251. The punishment of officers for willful failure to discharge their duty can not be legally effected through the agency of a retiring board; and in dealing with questions of this character, as in all problems connected with crime and its punishment, the law assumes the freedom of the human will in a person compos mentis and legally responsible for his actions. The distinction material to be drawn in such cases is indicated by the circumstances in the first of the three decisions of the JudgeAdvocate-General above cited. An officer could not be legally retired under the provisions of law hereinbefore cited merely because he frequently or even habitually became intoxicated, although such intoxication might, while it lasted, incapacitate him to discharge his duties. Inasmuch as the excessive drinking of alcoholic beverages which led to this condition of intoxication was in each instance a voluntary act on his part, he would be properly subject to the punishment prescribed by military law as administered by courts-martial for these excesses. If, however, as a result of such excesses, his bodily and mental faculties had become seriously and permanently impaired, then, even if the habits of intemperance had ceased, he would be properly subject to retirement under the provisions of section 1252. With respect to the officers of the Navy, the law (sec. 1456, Rev. Stat.) provides expressly that

"No officer of the Navy shall be placed on the retired list because of misconduct; but he shall be brought to trial by court-martial for such misconduct."

And I think there is no doubt that the same principle must be recognized in the construction relating to the Army.

It follows from what I have just said that, in my opinion, an officer can not be retired under the provisions of law above set forth if he could have been properly brought to trial by court-martial for the same acts or omissions which are alleged as evidence of the incapacity justifying his re

tirement. If he displays impatience or irritability, imperfect control of his temper, indolence, indecision, and want of alertness to such an extent as to destroy or gravely impair his usefulness, it would seem almost, indeed quite, incredible that he should not have been guilty of some breach of the Articles of War. If his excesses in eating and drinking have been sufficient to incapacitate him for the discharge of his duties, this may constitute a clearly appropriate ground for disciplinary action, but, inasmuch as these indiscretions are evidently voluntary on his part, they can not of themselves constitute an incapacity justifying retirement. Of course if a process of mental deterioration due to the causes above mentioned has culminated in a mild form of insanity, or if excessive self-indulgence and disregard of the laws of health have produced such maladies as make it impossible for the officer in question properly to discharge his duties, the incapacity justifying his retirement would exist, and the causes leading to such incapacity would be immaterial; but except in so extreme a case as I have supposed, it is my opinion that the officer might have all the infirmities and undesirable habits mentioned in your letter and yet not be incapable of discharging his duties in the sense contemplated by the law as justifying his retirement.

It is to be remembered that the incapacity to discharge his duties contemplated by the statute is not an incapacity to discharge them as well as they ought, theoretically, to be discharged, or as well as they are discharged by officers generally of the same rank and intrusted with similar duties. The law does not say that he must be incapable of performing his duties well, but that he must be incapable of performing them at all, or, in other words, he must be unable to so perform them as to reasonably fulfill the purposes of his employment. A person having the infirmities of temper and the mental and bodily characteristics described in your letter might readily be a very undesirable superior, colleague, or subordinate, and might severely tax the patience of other members of the service necessarily brought into contact with him in the discharge of their military duties, but it would not follow from these facts

that he was incapable of discharging his duties. A more reasonable inference would be, perhaps, that he was unwilling to discharge them properly, and therefore that he was a suitable subject for the appropriate military discipline.

Answering your question in its terms, I give as my opinion that an officer found by a retiring board, duly organized and convened, to be "incapable of performing the duties of his office" may be, and ought to be, retired in accordance with the provisions of sections 1245 to 1252, inclusive, of the Revised Statutes, without regard to the causes which may have led to such incapacity on his part; but that to be "incapable" in the language of the law, he must be either no longer responsible for his own actions or subject to infirmities or disabilities which make the reasonable fulfillment of his military duties impossible for him, notwithstanding an earnest desire and firm purpose on his part to fully discharge them.

I remain, sir,

Yours, very respectfully,

CHARLES J. BONAPARTE.

The SECRETARY OF WAR.

PANAMA RAILROAD

COMPANY-ANNUAL PAYMENT OF

$250,000 FOR ITS CONCESSION.

A claim made by the appropriate officers of the United States upon the officers of the Panama Railroad Company for the $250,000 per annum which that company agreed to pay the Republic of Colombia for its concession would, of itself, imply a recognition by the United States Government of the agreement previously entered into by the railroad company as regards its concession and would render any formal reaffirmation thereof on the part of the United States unnecessary.

When a new sovereign succeeds to the rights of one dispossessed of a territory in which concessions of a public character have been granted, it must be presumed, in the absence of express action on its part indicating unmistakably a contrary intention, to adopt and ratify the acts of its predecessor in respect thereto.

The party entering into such a contract can not rightfully repudiate the terms of such concessions and thus release itself from the

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