States Army shall be by selection. Permanent promotions in the Regular Army will continue to be made as prescribed by law. [320, A. G. O.] By order of the Secretary of War: Official: Peyton C. March, General, Chief of Staff. H. P. McCain, The Adjutant General. 8. GENERAL ORDERS, No. 78 War Department, Washington, August 22, 1918. By direction of the President, General Orders, No. 132, War Department, 1917, is rescinded and the following regulations, governing for the duration of the war the appointment and promotion of officers of the Army, are published for the information and guidance of all concerned: 1. Vacancies-How filled.-Training schools will be maintained to prepare selected noncommissioned officers and privates for commissions. Vacancies in the grade of second lieutenant in a regiment or separate unit will be filled, in so far as practicable, by the appointment of candidates from the unit who have passed through these schools. In exceptional cases, for gallantry in action and demonstrated fitness, enlisted men may be appointed second lieutenants though not graduates of the training schools. Vacancies in the grade of second lieutenant not filled in the foregoing manner will be filled by transfer or assignment. Vacancies in grades below that of lieutenant colonel and above that of second lieutenant in any regiment or separate unit will be filled, so far as practicable, by the promotion of officers selected from the next lower grade in the regiment or separate unit in which the vacancy occurs. In case of necessity the selection may be made from officers of the next lower grade in the same arm or corps within the division. Vacancies in the grade of colonel and lieutenant colonel will be filled, as far as practicable, by selection from officers in the next lower grade in the same arm of the service, in the division to which the organization in which the vacancy occurs is assigned or attached for service. Vacancies in any commissioned grade within a division may be filled by transfer of officers of the same grade and arm or corps of the service by competent authority, when the interests of the service demand such action. 2. Recommendations for appointment.-A personnel board will be organized in each separate unit and regiment or higher unit. The board will be appointed by the unit commander to recommend to him details, assignments, and appointments of officers. The board will be permanent but the members thereof will be changed so that no member will serve continuously more than three months, and having served three months he will not serve again until the expiration of three months. Recommendations for appointment must be based solely on demonstrated fitness and capacity, without regard to seniority, except that selections will ordinarily be made from the next lower grade. In the United States and its possessions commanding generals of divisions and of separate units will submit recommendations to The Adjutant General of the Army to fill vacancies in organizations forming part of their command. While serving in expeditionary forces similar recommendations will be made to the commanding general of the expeditionary forces. Commanding generals of expeditionary forces serving abroad are authorized, pending the approval of the War Department, to fill all vacancies in their command below the grade of general officer. 3. Coast Artillery.-When a vacancy occurs in an organization of the Coast Artillery not serving with a division or higher tactical unit or in an expeditionary force abroad, the chief of Coast Artillery will submit recommendation to The Adjutant General of the Army for filling such vacancy. When an organization of the Coast Artillery is serving with a division or higher tactical unit or expeditionary force, the same rules with respect to appointment and promotion apply as in the case of other arms of the service. 4. Staff officers.-When a vacancy exists in a staff corps or department within the territorial limits of the United States in a grade above the lowest commissioned grade authorized by law, such vacancy shall be filled by promotion or assignment on recommendation of the chief of the bureau. When such vacancy exists in a staff corps or department in an expeditionary force, the vacancy will be filled upon the recommendation of the commanding general of the expeditionary force in which the vacancy occurs; and the commander of such expeditionary force may fill such vacancies by temporary appointments or by assignments, subject to the approval of the War Department. Appointments and promotions in the staff corps, as well as in the line, will be made solely to obtain efficiency. The policy of the War Department is, however, that only for exceptional merit will staff officers be advanced in grade above meritorious contemporaries in the line. 5. Officers not covered by the above paragraphs.-Commanding generals of expeditionary forces serving abroad, to whom officers detached from tactical units and serving abroad report, will make recommendation as to the promotion of such officers. The chiefs of their respective corps and their commanding officers, or the officers to whom they report, will make recommendation for the promotion of officers not covered by the preceding paragraphs of this order. 6. All promotions and appointments made as herein prescribed will be subject to examination as to physical fitness. [210.2, A. G. O.] By order of the Secretary of War: Official: Peyton C. March, General, Chief of Staff. P. C. Harris, Acting The Adjutant General. 9. GENERAL ORDERS, No. 83 War Department, Washington, September 10, 1918. II. 1. The Judge Advocate General's Department shall exercise general supervision of all legal and controverted questions arising in the administration of the War Risk Insurance Act within the Army. All such questions arising within the Army in the field shall be presented to, and in the first instance determined by, the officer of that department to be designated for the purpose, and by him submitted, when deemed advisable or necessary, to the Judge Advocate General of the Army. The Judge Advocate General will organize that office and department so that such questions may have the most expeditious consideration and disposition. 2. The Adjutant General's Department is charged with the preparation, execution and disposition of all forms and with all other administrative matters pertaining to the War Risk Insurance Act within the Army, subject to the provisions of paragraph 1 with respect to legal and controverted questions. (004.61, A. G. O.) By order of the Secretary of War: Official: Peyton C. March, General, Chief of Staff. P. C. Harris, Acting The Adjutant General. C. FEDERAL JUDICIAL OPINIONS (1917, 1918) 1. ARVER v. UNITED STATES. (Supreme Court of the United States, 1918. 245 U. S. 366, 38 Sup. Ct., 159, 62 L. Ed. L. R. A. 191SC, 361, Ann. Cas. 1918B, 856.) In Error to the District Court of the United States for the District of Minnesota. In Error to the District Court of the United States for the Southern District of New York. Joseph F. Arver, Alfred F. Grahl, Otto Wangerin, Walter Wangerin, Louis Kramer, and Meyer Graubard were convicted of failing to present themselves for registration under the Act of May 18, 1917, c. 15, and they bring error. Affirmed. Mr. Chief Justice WHITE delivered the opinion of the Court. We are here concerned with some of the provisions of the Act of May 18, 1917 (Public No. 12, 65th Congress, c. 15, 40 Stat. 76), entitled "An act to authorize the President to increase temporarily the military establishment of the United States." The law, as its opening sentence declares, was intended to supply temporarily the increased military force which was required by the existing emergency, the war then and now flagrant. The clauses we must pass upon and those which will throw light on their significance are briefly summarized. The act proposed to raise a national army, first, by increasing the regular force to its maximum strength and there maintaining it; second, by incorporating into such army the members of the National Guard and National Guard Reserve already in the service of the United States (Act of Congress of June 5, 1916, c. 134, 39 Stat. 211) and maintaining their organizations to their full strength; third, by giving the President power in his discretion to organize by volunteer enlistment four divisions of infantry; fourth, by subjecting all male citizens between the ages of twenty-one and thirty to duty in the national army for the period of the existing emergency after the proclamation of the President announcing the necessity for their service; and fifth, by providing for selecting from the body so called, on the further proclamation of the President, 500,000 enlisted men, and a second body of the same number should the President in his discretion deem it necessary. To carry out its purposes the act made it the duty of those liable to the call to present themselves for registration on the proclamation of the President so as to subject themselves to the terms of the act and provided full federal means for carrying out the selective draft. It gave the President in his discretion power to create local boards to consider claims for exemption for physical disability or otherwise made by those called. The act exempted from subjection to the draft designated United States and state officials as well as those already in the military or naval service of the United States, regular or duly ordained ministers of religion and theological students under the conditions provided for, and while relieving from military service in the strict sense the mem bers of religious sects as enumerated whose tenets excluded the moral right to engage in war, nevertheless subjected such persons to the performance of service of a noncombatant character to be defined by the President. The proclamation of the President calling the persons designated within the ages described in the statute was made and the plaintiffs in error who were in the class and under the statute were obliged to present themselves for registration and subject themselves to the law failed to do so and were prosecuted under the statute for the penalties for which it provided. They all defended by denying that there had been conferred by the Constitution upon Congress the power to compel military service by a selective draft and if such power had been given by the Constitution to Congress, the terms of the particular act for various reasons caused it to be beyond the power and repugnant to the Constitution. The cases are here for review because of the constitutional questions thus raised, convictions having resulted from instructions of the courts that the legal defences were without merit and that the statute was constitutional. The possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power "to declare war; * * * to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; * * * to make rules for the government and regulation of the land and naval forces." Article 1, § 8. And of course the powers conferred by these provisions like all other powers given carry with them as provided by the Constitution the authority "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." Article 1, § 8. As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice. It is said, however, that since under the Constitution as originally framed state citizenship was primary and United States citizenship but derivative and dependent thereon, therefore the power conferred upon Congress to raise armies was only coterminous with United States citizenship and could not be exerted so as to cause that citizenship to lose its dependent character and dominate state citizenship. But the proposition simply denies to Congress the power to raise armies which the Constitution gives. That power by the very terms of the Constitution, being delegated, is supreme. Article 6. In truth the contention simply assails the wisdom of the framers of the Constitution in conferring authority on Congress and in not retaining it as it was under the Confederation in the several states. Further it is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power. It is argued, however, that although this is abstractly true, it is not concretely so because as compelled military service is repugnant to a free government and in con |